[Federal Register: March 5, 2003 (Volume 68, Number 43)]

[Rules and Regulations]               

[Page 10388-10409]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]





Fish and Wildlife Service

50 CFR Part 17

RIN 1080-AI17


Endangered and Threatened Wildlife and Plants; Final Rule to List 

the Columbia Basin Distinct Population Segment of the Pygmy Rabbit 

(Brachylagus idahoensis) as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 

endangered status for the Columbia Basin distinct population segment of 

the pygmy rabbit (Brachylagus idahoensis) pursuant to the Endangered 

Species Act of 1973, as amended (Act). This population consists of 

fewer than 30 wild individuals in Douglas County, Washington, and a 

small captive population.

    The Columbia Basin pygmy rabbit is imminently threatened by recent 

decreases in its population size and distribution that have caused it 

to be susceptible to the combined influence of catastrophic 

environmental events, habitat degradation and fragmentation, disease, 

predation, demographic limitations, and loss of genetic heterogeneity. 

We find that these threats constitute a significant risk to the well-

being of the Columbia Basin pygmy rabbit and, as such, make the 

protective measures afforded by the Act immediately available with 

publication of this final rule.

DATES: This rule becomes effective on March 5, 2003.

ADDRESSES: The complete file for this final rule is available for 

inspection, by appointment, during normal business hours at the U.S. 

Fish and Wildlife Service, Upper Columbia Fish and Wildlife Office, 

11103 East Montgomery Drive, Spokane, Washington 99206.

FOR FURTHER INFORMATION CONTACT: Christopher Warren, at the address 

listed above (telephone 509/891-6839; facsimile 509/891-6748; 

electronic mail: chris--warren@fws.gov).



    The pygmy rabbit (Brachylagus idahoensis) is a member of the family 

Leporidae, which includes hares and rabbits. The species has been 

placed in a number of genera since it was first classified in 1891 as 

Lepus idahoensis (Washington Department of Fish and Wildlife (WDFW) 

1995a). In 1904, it was reclassified and placed in the genus 

Brachylagus. In 1930, it was again reclassified and placed in the genus 

Sylvilagus. More recent examination of dentition (Hibbard 1963) and 

analysis of blood proteins (Johnson 1968) suggest that the pygmy rabbit 

differs significantly from species within either the Lepus or 

Sylvilagus genera. The pygmy rabbit is now generally considered to be 

within the monotypic genus Brachylagus, and classified as B. idahoensis 

(Green and Flinders 1980a; WDFW 1995a). There are no recognized 

subspecies of the pygmy rabbit (Dalquest 1948; Green and Flinders 


    The pygmy rabbit is the smallest Leporid in North America, with 

mean adult weights from 375 to about 500 grams (0.83 to 1.1 pounds), 

and lengths from 23.5 to 29.5 centimeters (cm) (9.3 to 11.6 inches 

(in)) (Orr 1940; Janson 1946; Wilde 1978; Gahr 1993; WDFW 1995a; T. 

Katzner, Arizona State University, pers. comm. 2002). Females tend to 

be slightly larger than males. Pygmy rabbits undergo an annual molt. 

During summer, their overall color is slate-gray tipped with brown. 

Their legs, chest, and nape (back of neck) are tawny cinnamon-brown, 

their bellies are whitish, and the entire edges of their ears are pale 

buff. Their ears are short (3.5 to 5.2 cm (1.4 to 2.0 in)), rounded, 

and thickly furred outside. Their tails are small (1.5 to 2.4 cm (0.6 

to 0.9 in)), uniform in color, and nearly unnoticeable in the wild (Orr 

1940; Janson 1946; WDFW 1995a). The pygmy rabbit is distinguishable 

from other Leporids by its small size, short ears, gray color, small 

hind legs, and lack of white on the tail.

    Pygmy rabbits are typically found in areas of tall, dense sagebrush 

(Artemisia spp.) cover, and are highly dependent on sagebrush to 

provide both food and shelter throughout the year (Orr 1940; Green and 

Flinders 1980a; WDFW 1995a). The winter diet of pygmy rabbits is 

comprised of up to 99 percent sagebrush (Wilde 1978), which is unique 

among Leporids (White et al. 1982). During spring and summer in Utah, 

their diet consists of roughly 51 percent sagebrush, 39 percent grasses 

(particularly native bunch-grasses, such as Agropyron spp. and Poa 

spp.), and 10 percent forbs (an herb other than grass) (Green and 

Flinders 1980b). There is evidence that pygmy rabbits preferentially 

select native grasses as forage during this period in comparison to 

other available foods. In addition, total grass cover relative to forbs 

and shrubs may be reduced within the immediate areas occupied by pygmy 

rabbits as a result of its use as a food source during spring and 

summer (Green and Flinders 1980b). The specific diets of pygmy rabbit 

populations likely change depending on the region occupied (T. Katzner, 

pers. comm. 2002).

    The pygmy rabbit is believed to be one of only two Leporids in 

North America that digs its own burrows (Nelson 1909; Green and 

Flinders 1980a; WDFW 1995a), the other being the volcano rabbit 

(Romerolagus diazi) found in central Mexico (Durrell and Mallinson 

1970). Pygmy rabbit burrows

[[Page 10389]]

are typically found in relatively deep, loose soils of wind-borne or 

water-borne (e.g., alluvial fan) origin. Pygmy rabbits occasionally 

make use of burrows abandoned by other species, such as the yellow-

bellied marmot (Marmota flaviventris) or badger (Taxidea taxus) (Wilde 

1978; Green and Flinders 1980a; WDFW 1995a) and, as a result, may occur 

in areas of shallower or more compact soils that support sufficient 

shrub cover (Bradfield 1974). During winter, pygmy rabbits make 

extensive use of snow burrows, possibly to access sagebrush forage 

(Bradfield 1974), as travel corridors among their underground burrows, 

and/or as thermal cover (Katzner and Parker 1997).

    Pygmy rabbits, especially juveniles, likely use their burrows as 

protection from predators and inclement weather (Bailey 1936; Bradfield 

1974). The burrows frequently have multiple entrances, some of which 

are concealed at the base of larger sagebrush plants (WDFW 1995a). 

Burrows are relatively simple and shallow, often no more than 2 meters 

(m) (6.6 feet (ft)) in length and usually less than 1 m (3.3 ft) deep 

with no distinct chambers (Bradfield 1974; Green and Flinders 1980a; 

Gahr 1993). Burrows are typically dug into gentle slopes or mound/

inter-mound areas of more level or dissected topography (Wilde 1978; 

U.S. Department of Agriculture (USDA)1991; Gahr 1993). In general, the 

number of active burrows in an area increases over the summer as the 

number of juveniles increases. However, the number of active burrows 

may not be directly related to the number of individuals in a given 

area because some individual pygmy rabbits appear to maintain multiple 

burrows, while some individual burrows are used by multiple individuals 

(Gahr 1993; WDFW 1995a).

    Pygmy rabbits begin breeding their second year and, in Washington, 

breeding occurs from February through July (WDFW 1995a). In some parts 

of the species' range, females may have up to three litters per year 

and average six young per litter (Green 1978; Wilde 1978). Breeding 

appears to be highly synchronous in a given area and juveniles are 

often identifiable to cohorts (Wilde 1978). No evidence of nests, 

nesting material, or lactating females with young has been found in 

burrows (Bradfield 1974; Gahr 1993; WDFW 1995a). Individual juveniles 

have been found under clumps of sagebrush, although it is not known 

precisely where the young are born in the wild or if they may be 

routinely hidden at the bases of scattered shrubs or within burrows 

(Wilde 1978).

    Current information on captive pygmy rabbits indicates that females 

may excavate specialized ``natal'' burrows for their litters in the 

vicinity of their regular burrows (P. Swenson, Oregon Zoo, pers. comm. 

2001; L. Shipley, Washington State University (WSU), pers. comm. 2001). 

Apparently, females begin to dig and supply nesting material (e.g., 

grass clippings) to these burrows several days prior to giving birth, 

and may give birth and nurse their young at the ground surface in a 

small depression near the burrow's entrance. After nursing, the young 

return to the burrow and the female re-fills the burrow entrance with 

loose soil and otherwise disguises the immediate area to avoid 

detection. Other ``dead-end'' burrows that females construct nearby are 

apparently associated with the natal burrows and may be important for 

providing proper aeration. Females may also alter their defecation and 

latrine habits while pregnant and nursing (P. Swenson, pers. comm. 

2001). Further work with captive and wild pygmy rabbits should shed 

additional light on the details of their reproductive strategy.

    Pygmy rabbits may be active at any time of the day or night and 

appear to be most active during mid-morning (Bradfield 1974; Green and 

Flinders 1980a; Gahr 1993). Pygmy rabbits maintain a low stance, have a 

deliberate gait, and are relatively slow and vulnerable in more open 

areas. They can evade predators by maneuvering through the dense shrub 

cover of their preferred habitats, often along established trails, or 

by escaping into their burrows (Bailey 1936; Severaid 1950; Bradfield 


    Pygmy rabbits tend to have relatively small home ranges during 

winter, remaining within roughly 30 m (98 ft) of their burrows (Orr 

1940; Janson 1946; Gahr 1993; Katzner and Parker 1997), although some 

snow burrows may extend outward up to 100 m (328 ft) (Bradfield 1974). 

They have larger home ranges during spring and summer (Orr 1940; Janson 

1946; Gahr 1993; Katzner and Parker 1997). During the breeding season 

in Washington, females tend to make relatively short movements within a 

small core area and have home ranges covering roughly 2.7 hectares (ha) 

(6.7 acres (ac)); males tend to make longer movements, traveling among 

a number of females, resulting in home ranges covering roughly 20.2 ha 

(49.9 ac) (Gahr 1993). These home range estimates in Washington are 

considerably larger than for pygmy rabbit populations in other areas of 

their historic range (WDFW 1995a; Katzner and Parker 1997). Pygmy 

rabbits may travel up to 1.2 kilometers (km) (0.75 miles (mi)) from 

their burrows (Gahr 1993), and there are a few records of apparently 

dispersing individuals moving up to 3.5 km (2.17 mi) (Green and 

Flinders 1979; Katzner and Parker 1998).

    The annual mortality rate of adult pygmy rabbits may be as high as 

88 percent, and over 50 percent of juveniles can apparently die within 

roughly 5 weeks of their emergence (Wilde 1978; WDFW 1995a). However, 

the mortality rates of adult and juvenile pygmy rabbits can vary 

considerably between years, and even between juvenile cohorts within 

years (Wilde 1978). Predation was shown to be the main cause of pygmy 

rabbit mortality in Idaho (Green 1979). Potential predators include 

badgers, long-tailed weasels (Mustela frenata), coyotes (Canis 

latrans), bobcats (Felis rufus), great horned owls (Bubo virginianus), 

long-eared owls (Asio otus), ferruginous hawks (Buteo regalis), 

northern harriers (Circus cyaneus), and common raven (Corvus corax) 

(Janson 1946; Gashwiler et al. 1960; Green 1978; Wilde 1978; WDFW 

1995a; D. Hays, WDFW, pers. comm. 2002; M. Hallet, WDFW, pers. comm. 


    Population cycles are not known in pygmy rabbits, although local, 

relatively rapid population declines have been noted in several States 

(Bradfield 1974; Weiss and Verts 1984; WDFW 1995a). After initial 

declines, pygmy rabbit populations may not have the same capacity for 

rapid increases in numbers as other Leporids due to their close 

association with specific components of sagebrush ecosystems, and the 

relatively limited availability of their preferred habitats (Wilde 

1978; Green and Flinders 1980b; WDFW 1995a).

Distribution and Status

    The historic distribution of the pygmy rabbit included much of the 

semi-arid, shrub steppe region of the Great Basin and adjacent 

intermountain zones of the conterminous western United States (Green 

and Flinders 1980a), and included portions of Montana, Idaho, Wyoming, 

Utah, Nevada, California, Oregon, and Washington (Figure 1).


[[Page 10390]]



    Currently, pygmy rabbits are not distributed continuously across 

their range, nor were they in the past. Rather, they are found in areas 

within their broader distribution where sagebrush cover is sufficiently 

tall and dense, and soils are sufficiently deep and loose to allow 

burrowing (Bailey 1936; Green and Flinders 1980a; Weiss and Verts 1984; 

WDFW 1995a). The local distribution of these habitat patches, and thus 

pygmy rabbits, likely shifts

[[Page 10391]]

across the landscape in response to various sources of disturbance 

(e.g., fire, flooding, grazing, crop production) combined with long- 

and short-term weather patterns. In the past, more dense vegetation 

along permanent and intermittent stream channels, alluvial fans, and 

sagebrush plains probably provided travel corridors and dispersal 

habitat for pygmy rabbits between appropriate use areas (Green and 

Flinders 1980a; Weiss and Verts 1984; WDFW 1995a). Since European 

settlement of the western United States, more dense vegetation 

associated with some human activities (e.g., fence rows, roadway 

shoulders, crop margins, abandoned fields) may have also acted as 

avenues of dispersal between local populations of pygmy rabbits (Green 

and Flinders 1980a; Pritchett et al. 1987).

Prehistoric Distribution

    There is very little information currently available regarding the 

prehistoric distribution of the pygmy rabbit throughout the majority of 

its range. However, the pygmy rabbit has been present within the 

Columbia Basin, a geographic area that extends from northern Oregon 

through eastern Washington (Quigley et al. 1997), for over 100,000 

years (Lyman 1991). This population segment, which we refer to as the 

Columbia Basin pygmy rabbit, is believed to have been disjunct from the 

remainder of the species' range since at least the early Holocene 

(10,000 to 7,000 years before present (BP)), as suggested by the fossil 

record (Grayson 1987; Lyman 1991). This separation is in contrast to 

the relatively short-term, local patterns of isolation, extirpation, 

and recolonization that likely occur throughout pygmy rabbit range (see 

above). The Columbia Basin pygmy rabbit probably had a broader 

distribution during the mid-Holocene (roughly 7,000 to 3,000 years BP) 

(Lyman 1991). Gradual climate change affecting the distribution and 

composition of sagebrush communities is thought to have resulted in a 

reduction of the Columbia Basin pygmy rabbit's range during the late 

Holocene (3,000 years BP to present) (Grayson 1987; Lyman 1991).

Historic and Current Distribution

    Columbia Basin pygmy rabbits have been considered rare with local 

areas of occurrence within the Columbia Basin for many years (Dalquest 

1948), although there is little comprehensive information available 

regarding their historic distribution and abundance within this region 

(WDFW 1995a). Museum specimens and reliable sight records indicate that 

Columbia Basin pygmy rabbits probably occurred in portions of at least 

five Washington counties during the first half of the 1900s, including 

Douglas, Grant, Lincoln, Adams, and Benton (Figure 2).


[[Page 10392]]



    Once thought to be extirpated, Columbia Basin pygmy rabbits were 

again located in Washington in 1979. Intensive surveys in 1987 and 1988 

discovered five small subpopulations in southern Douglas County; three 

occurred on State lands and two on private lands (WDFW 1995a). With the 

exception of a single site record from Benton County in 1979, Columbia 

Basin pygmy rabbits have been found only in southern Douglas and 

northern Grant counties since 1956 (WDFW 2000a). The Washington 

Wildlife Commission designated the pygmy rabbit as a State threatened 

species in 1990, and reclassified it as endangered in 1993 (WDFW 


    The number of Columbia Basin pygmy rabbit subpopulations and active 

burrows in Washington has declined over the past decade (WDFW 2001a). 

Four of the five subpopulations located in 1987 and 1988 were very 

small, with fewer than 100 active burrows (WDFW 1995a); the largest 

subpopulation (at the State-owned Sagebrush Flat site in

[[Page 10393]]

Douglas County) contained roughly 588 active burrows in 1993, when it 

was estimated to support fewer than 150 rabbits (Gahr 1993). While an 

additional subpopulation was discovered on private land in northern 

Grant County in 1997, three of the small subpopulations originally 

located were extirpated during the 1990s, leaving just three known 

subpopulations in 1999 (WDFW 2001a).

    One of the three remaining sites experienced a catastrophic fire in 

1999 and declined to three active burrows, while the newly discovered 

site in Grant County declined for unknown reasons to two active burrows 

following the winter of 1999-2000 (WDFW 2001a). These two 

subpopulations are now thought to be extirpated (WDFW 2001b). In 

addition, during the winter of 1997-1998, the number of active Columbia 

Basin pygmy rabbit burrows at the Sagebrush Flat site declined by 

approximately 50 percent, and has continued to decline each year since 

(WDFW 2001a). The entire, wild Columbia Basin pygmy rabbit population 

is now considered to consist of fewer than 30 individuals from just one 

known subpopulation at the Sagebrush Flat site in Douglas County (D. 

Hays, pers. comm. 2002).

    Although habitat loss and fragmentation have likely played a 

primary role in the long-term decline of the Columbia Basin pygmy 

rabbit, it is unlikely that these factors have directly influenced the 

post-1995 declines at the Sagebrush Flat site and the extirpations of 

some of the smaller populations (WDFW 2001a). Once populations decline 

below a certain threshold, they are at risk of extirpation from a 

number of influences including chance environmental events (e.g., 

extreme weather), catastrophic habitat or resource failure (e.g., due 

to fire or insect infestations), predation, disease, demographic 

limitations, and loss of genetic heterogeneity. The Columbia Basin 

pygmy rabbit in the wild is currently at such risk and, without 

intervention, is likely to become extirpated in the near future (WDFW 


Previous Federal Action

    We added the pygmy rabbit to our candidate species list on November 

21, 1991, as a category 2 species (56 FR 58804). A category 2 species 

was one for which we possessed information indicating that a proposal 

to list it as threatened or endangered under the Act was possibly 

appropriate, but for which sufficient data on biological vulnerability 

and threats were not available to support a proposed rule. In a 

February 28, 1996, notice, we discontinued the designation of category 

2 species as candidates for listing under the Act (61 FR 7596). The 

Columbia Basin pygmy rabbit was not included as a candidate for listing 

in this notice.

    In FY 2001, the Service was nearly faced with a situation where it 

could not comply with all its court orders. Early in calendar year 

2001, it became apparent that the cost of compliance with existing 

court orders exceeded our FY 2001 listing funding. After more than 6 

months of negotiating, the Service was able to reach an agreement with 

several plaintiffs that allowed us to postpone a few actions previously 

scheduled for work in FY 2001. This agreement allowed us to reallocate 

funding to complete court-ordered work as well as some listing actions. 

On August 28, 2001, we reached an agreement with the Center for 

Biological Diversity, Southern Appalachian Biodiversity Project, and 

the California Native Plant Society to complete work on a number of 

species proposed for listing. Under this agreement, we were required to 

issue several final listing decisions, propose a number of other 

species for listing, and review three species for emergency listing, 

including the Columbia Basin DPS of the pygmy rabbit (Center for 

Biological Diversity, et al. v. Norton, Civ. No. 01-2063 (JR) (D.D.C.), 

entered by the court on October 2, 2001).

    On November 30, 2001, we published an emergency rule to list the 

Columbia Basin pygmy rabbit as endangered (66 FR 59734). We found that 

emergency listing action was justified because immediate and 

significant risks to the well-being of this DPS existed due to its 

recent decreases in population size and distribution over the past 

several years. Our November 30, 2001, emergency rule provided Federal 

protection to the Columbia Basin pygmy rabbit pursuant to the Act for a 

period of 240 days. Concurrently with the emergency rule, we also 

published a proposed rule to list this DPS as endangered under our 

normal listing procedures (66 FR 59769). On February 7, 2002, we 

published a notice in the Federal Register extending the comment period 

for the proposed rule through February 28, 2002 (67 FR 5780). The 

comment period was reopened to accommodate requests by State resource 

agencies and private interests for additional time to provide input. On 

February 12, 2002, we held a public meeting in East Wenatchee, 

Washington, to discuss the proposed rule with any interested parties. 

On July 17, 2002, we published a notice in the Federal Register 

extending the comment period for the proposed rule through August 1, 

2002 (67 FR 46951).

    In accordance with section 10(a)(1)(A) of the Act, on December 18, 

2001, we issued a recovery permit to the WDFW (TE050644) for their 

ongoing management actions to protect and conserve the Columbia Basin 

pygmy rabbit (see Current Management Actions, below). We issued 

revisions to this permit on January 10, 2002, and March 18, 2002. We 

also published notices in the Federal Register on December 19, 2001, 

and March 20 and April 3, 2002, describing the emergency circumstances, 

announcing receipt of permit applications, and issuing public notice 

exemptions concerning this permit and its revisions (66 FR 65508, 67 FR 

15825, 67 FR 13004).

Current Management Actions

    The WDFW has undertaken a variety of conservation actions for the 

Columbia Basin pygmy rabbit since 1979 (WDFW 1995a, 2001a). These 

actions have included population surveys, habitat inventories, land 

acquisitions, habitat restoration, land management agreements, 

initiation of studies on the effects of livestock grazing, and predator 

control. These efforts have been funded by a variety of sources. As 

funding sources and staffing levels allow, WDFW efforts to conserve the 

Columbia Basin pygmy rabbit in the wild will continue (D. Hays, pers. 

comm. 2002).

    During the fall of 2000, the WDFW, in cooperation with the Oregon 

Zoo, initiated a study of husbandry techniques for pygmy rabbits (WDFW 

2001a). This study used five pygmy rabbits captured in Idaho and was 

undertaken to improve the information base for proposed captive 

propagation and release efforts for the Columbia Basin pygmy rabbit. 

Due to the continuing decline of pygmy rabbit subpopulations and active 

burrows in Washington, the WDFW, in cooperation with WSU, expedited 

their captive propagation efforts for the Columbia Basin pygmy rabbit 

during the spring of 2001 (WDFW 2001b; D. Hays, pers. comm. 2001).

    The main goal of this effort is to capture up to 20 individuals to 

establish a captive breeding stock. The actual number and type (gender, 

age, family unit) of pygmy rabbits to be taken from the wild is based 

partly on information from the ongoing husbandry study of Idaho pygmy 

rabbits, partly on estimates of what is needed to allow for appropriate 

manipulation of family lineages to better manage this population's 

unique genetic profile, and partly on the availability of animals for 

capture. Any Columbia Basin pygmy

[[Page 10394]]

rabbits that are not considered essential to the captive propagation 

effort will be left in the wild, and ongoing management to protect the 

wild portion of this population will continue.

    Since the spring of 2001, 16 Columbia Basin pygmy rabbits (nine 

females, seven males) have been captured as an initial source for 

captive breeding efforts (D. Hays, pers. comm. 2002). In addition, 

shortly after being captured, one female gave birth to a litter of five 

offspring (two females, three males) that was conceived in the wild (D. 

Hays, pers. comm. 2001; L. Shipley, pers. comm. 2001). Of the adult 

rabbits, two males and one female captured from the wild subsequently 

died (WDFW 2001c). Full necropsies were conducted on these three 

specimens, with the following results: One male, which died shortly 

after being captured, may have had reduced body condition while in the 

wild; the other male died from unknown causes; and the female died due 

to complications caused by a fall from a sagebrush plant placed in her 

cage. Several procedures, developed in coordination with results from 

the ongoing husbandry study, have been implemented to reduce the risk 

of capture-related mortality of pygmy rabbits. In addition, in order to 

reduce the risk of catastrophic loss of a single captive population, a 

number of Columbia Basin pygmy rabbits have been placed at the Oregon 

Zoo facility. Appropriate measures have been taken to ensure that the 

Columbia Basin pygmy rabbits remain completely segregated from the 

pygmy rabbits captured in Idaho that are being used for the husbandry 


    The remaining 18 captive Columbia Basin pygmy rabbits appear to 

have adjusted well to the two rearing facilities (WDFW 2001c). As 

opportunities arise, the intent is to capture additional Columbia Basin 

pygmy rabbits that will complement the genetic profiles and potential 

breeding scenarios of those already in captivity (D. Hays, pers. comm. 

2002; K. Warheit, WDFW, pers. comm. 2002).

    The WDFW's captive propagation program affords an opportunity to 

protect and maintain the Columbia Basin pygmy rabbit until conditions 

can be made more favorable for its survival in the wild. Ultimately, 

the goal of the captive propagation effort is to release captive-bred 

Columbia Basin pygmy rabbits back into suitable habitats within their 

historic range where viable subpopulations can become re-established 

and self-sustained in the wild (WDFW 2001b; D. Hays, pers. comm. 2001). 

The number and size of the wild subpopulations necessary for recovery 

pursuant to the Act have not yet been determined. Columbia Basin pygmy 

rabbits within captive rearing facilities will not be counted towards 

recovery of the species. The timing and objectives for the release 

phase of the program will be further developed as the captive 

propagation effort becomes established. The WDFW will remain the lead 

agency for these efforts, and has developed a Science Advisory Group to 

provide recommendations and technical oversight for the conservation 

program. The group is currently comprised of State and Federal agency 

personnel, public zoo, and university experts, representatives from 

non-governmental organizations, and private individuals with interests 

in the conservation of the Columbia Basin pygmy rabbit.

    The Nature Conservancy (TNC), a non-governmental natural resource 

advocacy organization, has acquired, or obtained easements on, portions 

of the remaining shrub steppe habitat in southern Douglas and northern 

Grant counties, including the acquisition of approximately 6,900 ha 

(17,000 ac) adjacent to the WDFW's Sagebrush Flat site. As appropriate, 

TNC lands in central Washington will be managed to support the 

conservation efforts undertaken for the Columbia Basin pygmy rabbit (C. 

Warner, TNC, pers. comm. 2001).

    Portions of the remaining shrub steppe habitat in southern Douglas 

and northern Grant counties are under the jurisdiction of the U.S. 

Bureau of Land Management (BLM) and State resource agencies. 

Conservation measures for the Columbia Basin pygmy rabbit are 

considered in the management of these agency lands (D. Hays, pers. 

comm. 2001; N. Hedges, BLM, pers. comm. 2001). Many of the existing and 

future land acquisitions and management actions of the TNC, BLM, and 

State agencies in this area are targeted at sites recently occupied by 

the Columbia Basin pygmy rabbit and at providing connectivity of 

appropriate habitats between these sites.

    Large areas of privately owned lands in Douglas County are 

currently withdrawn from crop production and planted to native and non-

native cover under the Federal Conservation Reserve Program (CRP), 

established in 1985 (USDA 1998). These lands, some of which have been 

set aside since the late 1980s, provide grass and shrub cover that may 

improve the habitat conditions of areas potentially occupied or used as 

dispersal corridors by the Columbia Basin pygmy rabbit. New and re-

signed program contracts completed in 1998 increased the acreage of CRP 

lands in Douglas County. However, contracts extend for just 10 years, 

and new standards for CRP lands were implemented that required 

replanting of significant acreage under existing contracts (USDA 1998; 

M. Schroeder, WDFW, pers. comm. 2001). Presently, it is unclear what 

effects the CRP lands and current changes to the program may have on 

the Columbia Basin pygmy rabbit.

    Currently, we are assisting private landowners and their 

conservation districts with development of a county-wide habitat 

conservation plan (HCP) for agricultural lands in Douglas County, 

Washington. When completed, the Foster Creek HCP will likely include 

measures to protect the Columbia Basin pygmy rabbit and may complement 

other, ongoing conservation efforts in Douglas County.

Distinct Vertebrate Population Segment

    Pursuant to the Act (16 U.S.C. 1531 et seq.), we must consider for 

listing any species, subspecies, or, for vertebrates, any distinct 

population segment (DPS) of these taxa if there is sufficient 

information to indicate that such action may be warranted. To implement 

the measures prescribed by the Act and Congressional direction, the 

Service and the National Marine Fisheries Service (NMFS) developed a 

joint policy in 1996 that addresses the recognition of DPS for 

potential listing actions (61 FR 4722). The policy allows for more 

refined application of the Act that better reflects the biological 

needs of the taxon being considered, and avoids the inclusion of 

entities that do not require its protective measures.

    Two elements are used to assess whether a population segment under 

consideration for listing pursuant to the Act constitutes a DPS. The 

two elements are: (1) The population segment's discreteness from the 

remainder of the taxon; and (2) the population segment's significance 

to the taxon to which it belongs. A systematic application of these 

elements is appropriate, with discreteness criteria applied first, 

followed by significance analysis. If we determine that a population 

segment being considered for listing represents a DPS, then the status 

of the population and level of threats to the population segment is 

evaluated based on the five listing factors established by the Act to 

determine if listing the DPS as either threatened or endangered is 



    Discreteness may be demonstrated by either, or both, of the 

following: (1) Physical, physiological, ecological, behavioral, 

morphological, or genetic discontinuity between population

[[Page 10395]]

segments; or (2) international governmental boundaries between which 

differences in regulatory mechanisms exist that are significant with 

regard to conservation of the taxon. The pygmy rabbit does not occur 

outside of the lower 48 conterminous United States, so the 

international boundary criterion does not apply.

    The Columbia Basin pygmy rabbit has been physically discrete from 

the remainder of the taxon for several millennia (see Distribution and 

Status, above). In addition, there is current evidence that the 

Columbia Basin pygmy rabbit is genetically and ecologically discrete 

from the remainder of the taxon (see Significance, below). Based on 

this information, we find that the Columbia Basin pygmy rabbit 

population segment is discrete from the remainder of the taxon pursuant 

to the Act. Physiological, behavioral, or morphological differences 

between the Columbia Basin pygmy rabbit and populations throughout the 

remainder of the species' range are not known at this time.


    The types of information that may demonstrate the significance of a 

discrete population segment to the remainder of its taxon include, but 

are not limited to: (1) Persistence of the population segment in an 

ecological setting unusual or unique for the taxon; (2) evidence that 

loss of the population segment would result in a significant gap in the 

range of the taxon; (3) evidence that the discrete population segment 

represents the only surviving natural occurrence of the taxon that may 

be more abundant elsewhere as an introduced population outside its 

historic range; and (4) evidence that the population segment differs 

markedly from other population segments in its genetic characteristics. 

The following significance factors have bearing on the Columbia Basin 

pygmy rabbit.

    Markedly different genetic characteristics. Several studies have 

been initiated to investigate the pygmy rabbit's genetic profile (WDFW 

2000c; WDFW 2001a, c; Cegelski and Waits, undated). To date, the 

genetic analyses include current (ca 1990s to present) samples from 

Washington, Idaho, and Montana; and museum specimens (ca 1910s to 

1980s) from Washington, Idaho, Montana, and Oregon, with a median date 

of 1949 among these States (WDFW 2001c). Analyses have included both 

mitochondrial DNA (from current samples only) and nuclear DNA markers 

(WDFW 2001c; K. Warheit, pers. comm. 2001, 2002).

    Results from recent genetic analyses indicate that the Columbia 

Basin pygmy rabbit is markedly different from other pygmy rabbit 

population segments (WDFW 2001c; K. Warheit, pers. comm. 2001, 2002). 

These differences are consistent in both mitochondrial DNA and nuclear 

DNA indices, and between current (Washington versus Idaho and Montana) 

and museum (Washington versus Idaho, Montana, Oregon) samples. The 

genetic results suggest that the Columbia Basin pygmy rabbit diverged 

(i.e., was genetically isolated) from the remainder of the taxon at 

least 10,000 to 25,000 years BP, and possibly as long as 40,000 to 

115,000 years BP (WDFW 2001c; K. Warheit, pers. comm. 2001, 2002). The 

genetic differences that have so far been identified between the 

Columbia Basin pygmy rabbit and other pygmy rabbit populations are 

similar in nature to subspecific differences recognized in other mammal 

species. However, potential taxonomic reorganization of the pygmy 

rabbit species will require additional study (WDFW 2001c).

    In addition to the genetic differences that likely result from 

long-term isolation described above, the Columbia Basin pygmy rabbit 

also exhibits significantly less genetic diversity compared to other 

pygmy rabbit populations. Furthermore, the level of genetic diversity 

in this population segment has declined significantly and at an 

accelerated rate since the mid-1900s (Washington current versus 

Washington museum specimens). These results suggest a recent and rapid 

decline in the effective population size (i.e., the number of 

individuals contributing to reproduction) of the Columbia Basin pygmy 

rabbit, and that this population segment may be experiencing a degree 

of inbreeding depression (WDFW 2001c).

    Two conclusions may be drawn from the recent results of the genetic 

research on the pygmy rabbit--(1) the unique genetic characteristics of 

the Columbia Basin pygmy rabbit represent an important component in the 

evolutionary legacy of the species and, therefore, a genetic resource 

worthy of conservation; and (2) efforts should be undertaken to address 

the low level of genetic diversity within this population segment (K. 

Warheit, pers. comm. 2001, 2002).

    Persistence in an unusual or unique ecological setting. With regard 

to the historic distribution of the pygmy rabbit, several studies have 

defined and mapped landscape-level ecosystem components of Washington 

and Oregon and, to varying degrees, address the management of natural 

resources within these regional ecosystems (Daubenmire 1988; Franklin 

and Dyrness 1988; Keane et al. 1996; Quigley et al. 1997; Wisdom et al. 

1998). Although there are considerable differences between the studies, 

the ecosystem mapping units that were developed as a result of these 

studies are relatively consistent. These ecosystem mapping units are 

important for determining if the Columbia Basin pygmy rabbit may occupy 

an unusual or unique ecological setting. In addition, it is important 

for delineating the boundaries of any potential DPS in the region, as 

required by our DPS policy. Currently, there is insufficient 

information available to address the other shrub steppe ecosystems 

comprising historic pygmy rabbit range outside of Washington and 


    During the early 1900s, the pygmy rabbit populations in Washington 

and Oregon (Figure 2) occurred in five ecosystems identified by the 

above studies. For the purposes of this DPS analysis, we refer to these 

ecosystems as the Columbia Basin, High Lava Plains, Northern Great 

Basin, Owyhee Uplands, and Modoc Plateau (after Quigley et al. 1997). 

The Columbia Basin occurs in Washington and northern Oregon; the other 

four ecosystems occur in central and southern Oregon (Figure 3).


[[Page 10396]]



    These ecosystems are interspersed to varying degrees with forested 

habitats of the Southern and Eastern Cascades ecosystems to the west, 

Okanogan Highlands to the north, Bitterroot and Blue Mountains to the 

east, and steppe (grassland) habitats of the Palouse Prairie to the 


    The historic range of the Columbia Basin pygmy rabbit occurred 

entirely within the Columbia Basin of central Washington, and this 

population segment has been the only representation of the taxon within 

this ecosystem for thousands of years. During the early 1900s, the 

population segment of pygmy rabbits in central and southern Oregon was 

apparently locally dispersed across the High Lava Plains, Northern 

Great Basin, Owyhee Uplands, and Modoc Plateau (Figures 2 and 3). The 

distribution of the pygmy rabbit in Oregon has likely declined during 

the last century (Weiss and Verts 1984; WDFW 2000b) and, currently, 


[[Page 10397]]

encompasses areas within the Northern Great Basin ecosystem.

    A number of significant differences are found between the Columbia 

Basin ecosystem and the balance of pygmy rabbit range in central and 

southern Oregon. In general, the Columbia Basin is lower in elevation, 

contains soils of varying origin, and has been influenced by different 

geological processes. These structural differences, combined with 

regional climatic conditions, significantly influence the broad plant 

associations found within each ecosystem (Daubenmire 1988; Franklin and 

Dyrness 1988). Historically, transitional steppe habitats were much 

more prevalent in the Columbia Basin than in the ecosystems of central 

and southern Oregon. In contrast, juniper (Juniperus spp) woodlands and 

salt-desert shrub habitats were much more common in central and 

southern Oregon. Finally, there are significant differences in the type 

and distribution of sagebrush taxa among the ecosystems (Table 1).

    Table 1. Differences in ecosystem elements between regions occupied by the extant population segments of the pygmy rabbit in Washington and Oregon (after Winward 1980; Daubenmire 1988;

                                                   Franklin and Dyrness 1988; McNab and Avers 1994; Dobler et al. 1996; Quigley et al. 1997).

                                                                Ecosystem Elements: Geologic, Edaphic, and Transitional Habitats



        Population segment               Elevations               Soils          Channeled  scablands          playas                 Steppe            Juniper woodland     Salt-desert  scrub


Columbia Basin...................  <914m (<3,000 ft)      Deep/Loamy Glacial/   Prominent (north).....  Rare/Absent.........  Abundant (east).......  Rare/Absent.........  Rare/Absent.


Central/Southern Oregon..........  1,067 m     Thin/Rocky Volcanic   Rare/Absent...........  Prominent (NGB, OU).  Rare/Absent...........  Abundant (HLP)        Abundant

                                   (<3,500 ft)             (HLP \1\) Deep/                                                                             Present (NGB, OU).   (NGB, OU).

                                                           Alluvial (NGB \1\,

                                                           OU \1\).


                                                                       Ecosystem Elements: Sagebrush (Aretemesia) Taxa \2\


      Population segement          Basin ssp.       Wyoming ssp.      Mountain ssp.          Low            Three-tip           Stiff             Early            Silver             Black


Columbia Basin................  Dominant........  Present (west)..  Rare/Absent.....  Rare/Absent.....  Abundant (north)  Abundant........  Rare/Absent.....  Rare/Absent.....  Rare/Absent.

Central/Southern Oregon.......  Rare/Absent.....  Dominant........  Abundant........  Abundant........  Present (OU)....  Present.........  Present (HLP)...  Present (NGB,     Present (NGB,

                                                                                                                                                               OU).              OU).


\1\ Element primarily applies to the ecosystems noted: HLP--High Lava Plains; NGB--Northern Great Basin; OU--Owyhee Uplands.

\2\ Big Sagebrush (A. tridentata) Subspecies (ssp): Basin--A.t. tridentata, Wyoming--A.t. wyomingensis, Mountain--A.t. vaseyana; Low--A. arbuscula; Three-tip--A. tripartita; Stiff--A. rigida;

  Early--A. longiloba; Silver--A. cana; Black--A. nova.

    There are a number of broad habitat associations in common between 

the Columbia Basin and the ecosystems of central and southern Oregon 

(Daubenmire 1988; Franklin and Dyrness 1988). However, even within 

these common habitat associations, notable differences exist. In 

general, the composition of forb species differs considerably between 

the Columbia Basin and the ecosystems in central and southern Oregon 

(cf Daubenmire 1988; Franklin and Dyrness 1988). Even when the same 

forb species may be present, the two regions typically support 

different subspecies or varieties of these taxa (Hitchcock and 

Cronquist 1973).

    Currently, it is unclear if the Columbia Basin pygmy rabbit is 

different in several respects (i.e., physiologically, behaviorally, or 

morphologically) from other pygmy rabbit populations throughout the 

remainder of the species' historic range. However, based on the above 

ecological information, and the pygmy rabbit's close association with 

sagebrush ecosystems, we conclude that the Columbia Basin represents a 

unique ecological setting for the taxon due to its different geologic, 

climatic, edaphic (soil), and plant community components. In addition, 

the Columbia Basin ecosystem holds different management implications 

for the Columbia Basin pygmy rabbit compared to the ecosystems of 

southern Oregon and the population segment of pygmy rabbits occupying 

that region (see above), and likely also compared to the other 

sagebrush ecosystems and population segments found throughout the 

remainder of the species' range (see Background, above, and Summary of 

Factors Affecting the DPS, below).

    Significant gap in the range of the taxon. The Columbia Basin pygmy 

rabbit represents an isolated portion of the northern-most extent of 

the historic distribution of the taxon (Figure 1). Paleontological 

records indicate that the prehistoric distribution of this population 

segment (ca 150 to 10,000 \+\ years BP) may have encompassed roughly 23 

percent of the Columbia Basin (after Lyman 1991). As recently as the 

early 1900s, this population segment was distributed across 

approximately 10 percent of the Columbia Basin ecosystem (cf Figures 2 

and 3). Currently, the Columbia Basin pygmy rabbit occurs in less than 

1 percent of its overall historic distribution, and a small fraction of 

its potential prehistoric distribution.

    A number of studies address the characteristics of peripheral and/

or isolated populations and their influences on, and importance to, the 

remainder of the taxon. These studies indicate that peripheral and 

isolated populations may experience increased directional selection due 

to marginal or varied habitats at range peripheries, exhibit 

adaptations specific to these differing selective pressures, 

demonstrate genetic consequences of reduced gene flow dependent on 

varying levels of isolation, and/or have different responses to 

anthropogenic influences (Levin 1970; MacArthur 1972; Morain 1984; Lacy 

1987; Hengeveld 1990; Saunders et al. 1991; Hoffmann and Blows 1994; 

Furlow and Armijo-Prewitt 1995; Garcia-Ramos and Kirkpatrick 1997).

    The available information regarding the past distribution and 

isolation of the Columbia Basin pygmy rabbit demonstrates that this 

population segment is likely experiencing increased directional 

selection due to marginal and varied habitats at the periphery of the 

taxon's range. In addition, this population segment is exhibiting 


[[Page 10398]]

consequences of long-term isolation from other population segments and 

is responding, and will continue to respond, to the different 

anthropogenic influences in the region.

    Based on the above information, we conclude that the loss of the 

Columbia Basin pygmy rabbit would represent a significant gap in the 

range of the taxon, due to the loss of a conspicuous peripheral and 

isolated extension of its current and historic range.

Conclusion of DPS Review

    Based on the available information described above, we find that 

the Columbia Basin pygmy rabbit is discrete from, and significant to, 

the remainder of the taxon, and thus constitutes a DPS. The 

discreteness of this population segment is demonstrated by its 

physical, genetic, and ecological isolation from the remainder of the 

taxon. The significance of this population segment is demonstrated by: 

(1) Its genetic characteristics, which differ markedly from other 

population segments; (2) its long-term persistence in the unique 

ecological setting of the Columbia Basin; and (3) the significant gap 

in the current and historic range of the taxon that the loss of this 

population segment would represent. As required by our DPS policy, we 

have determined that the bounds of this DPS are conterminous with the 

historic distribution of the pygmy rabbit within the Columbia Basin 

ecosystem (Figure 2).

Summary of Comments and Recommendations

    In our November 30, 2001, proposed rule (66 FR 59769) and 

associated notifications, we requested that all interested parties 

submit comments, data, or other information that might contribute to 

development of a final listing decision. The comment period for the 

proposed rule was originally open from November 30, 2001, through 

January 29, 2002. During this period, we received a number of requests 

to extend the comment period and five requests to hold a public hearing 

to address the proposed rule. On February 7, 2002, we extended the 

comment period for the proposed rule through February 28, 2002. In 

addition, after coordinating meeting details with the requesters, on 

February 12, 2002, we held a public meeting in East Wenatchee, 

Washington, to present the information we had available on the Columbia 

Basin pygmy rabbit, to receive input, and to discuss the proposed rule 

with any interested parties. On July 17, 2002, we extended the comment 

period for the proposed rule through August 1, 2002.

    On November 30, 2001, February 7, 2002, and July 17, 2002, we 

contacted appropriate Federal, State, tribal, and local resource 

agencies and governmental offices, scientific organizations, 

agricultural organizations, outdoor user groups, environmental groups, 

and other interested parties and requested that they comment on the 

proposed rule. We established several methods for interested parties to 

provide comments and other materials, including verbally or in writing 

at the public meeting, by letter, facsimile, or, during the original 

and final open comment periods, by electronic mail. Notices of the 

extended comment period and public meeting announcement were also 

published in local newspapers on February 7, 2002, including the 

Wenatchee World, Columbia Basin Herald, and Spokesman Review.

    We received a total of 34 letters, facsimiles, comment cards, and 

electronic mailings from the public with comments and/or questions 

concerning the proposed rule on the Columbia Basin pygmy rabbit during 

the three comment periods. We also received 2 letters from the same 

individual. Of the comments received, 9 were in support of the listing 

action, 6 were opposed to the listing, and 19 were neutral.

    We revised and updated the information contained in this final rule 

to reflect the additional information we received during the open 

comment period for the proposed rule. We address substantive comments 

concerning various aspects of the proposed rule, below. General topics 

are categorized and comments of a similar nature under each topic are 

grouped together below, along with our response to each.

Impact of Listing Action

    Issue 1: We received a number of requests to explain more fully 

what the potential effects of listing the Columbia Basin pygmy rabbit 

would be on private lands, or private management actions on public 

lands, throughout the population's historic distribution.

    Our Response: Once a species becomes listed, either through our 

emergency or normal listing process, section 9 of the Act sets forth a 

series of general prohibitions that apply to that species. Of primary 

concern for Columbia Basin pygmy rabbits, the prohibitions make it 

illegal for any person subject to the jurisdiction of the United States 

to ``take'' them. The definition of ``take'' under the Act includes 

harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, 

or attempt to engage in any such conduct. ``Harm'' is further defined 

to include significant habitat modification or degradation that results 

in death or injury to the listed wildlife by significantly impairing 

behavioral patterns such as breeding, feeding, or sheltering. 

``Harass'' is further defined to include actions that create the 

likelihood of injury to listed wildlife by annoying it to such an 

extent as to significantly disrupt normal behavior patterns which 

include, but are not limited to, breeding, feeding, or sheltering. 

Other general prohibitions make it illegal to import or export listed 

wildlife or its parts or products, transport it in interstate or 

foreign commerce in the course of commercial activity, or sell it or 

offer it for sale in interstate or foreign commerce. Section 11 of the 

Act describes the civil and criminal penalties that may be imposed on 

any individual or organization that violates these prohibitions.

    Section 10 of the Act provides a number of exceptions to the 

prohibitions against prescribed in section 9. In other words, 

activities that could result in take of the Columbia Basin pygmy rabbit 

may be permitted by the Service if certain conditions are met. Under 

section 10(a)(1)(A), we may permit activities otherwise prohibited by 

section 9 if they are conducted for scientific purposes or to enhance 

the propagation or survival of the Columbia Basin pygmy rabbit 

(recovery permits). Under section 10(a)(1)(B), we may permit activities 

otherwise prohibited by section 9 if the resulting take is incidental 

to, and not the purpose of, the otherwise lawful activities (incidental 

take permits). In order for us to issue an incidental take permit, an 

applicant must submit an HCP that specifies: (1) The impact that will 

likely result from such taking; (2) what steps will be taken to 

minimize and mitigate such impacts, and the funding that will be 

available to implement such steps; (3) what alternative actions to such 

taking were considered and the reasons why such alternatives are not 

used; and (4) other such measures that the Secretary of Interior 

(Secretary) may require.

    With regard to non-Federal property, if pygmy rabbits are not 

present on the property, the Act's taking prohibition would not apply 

there. Where non-Federal property is occupied by the Columbia Basin 

pygmy rabbit, if management activity would not result in take, section 

9 would also not apply. Even if non-Federal property is occupied by the 

pygmy rabbit and management activities are likely to result in take, an 

incidental take permit may still be available under section

[[Page 10399]]

10(a). Service and technical assistance will be available to 

landowner(s) and/or operator(s) to help them avoid, minimize, or 

mitigate any adverse impacts to the Columbia Basin pygmy rabbit.

    Proposed activities authorized, funded, or carried out by a Federal 

agency are subject to the consultation requirements Congress prescribed 

in section 7 of the Act. Circumstances under which a proposed Federal 

action or Federal nexus may affect the Columbia Basin pygmy rabbit will 

be handled through consultation with the involved Federal agency and 

applicant(s), as necessary, on a case-by-case basis, in accordance with 

section 7 of the Act.

    Issue 2: Various commenters expressed concern regarding 

circumstances where landowners or operators of currently unoccupied 

habitat are adjacent to occupied sites or areas potentially used for 

reintroduction efforts, and what the consequences of future occupation 

of these lands by the Columbia Basin pygmy rabbit may be.

    Our Response: Authorization of take of rabbits incidental to 

otherwise lawful activities may be available through development of 

HCPs and issuance of incidental take permits in accordance with section 

10(a) of the Act. In addition, landowners or operators may enter into 

Safe Harbor Agreements that provide regulatory assurances to landowners 

who manage their properties in such a way as to attract Columbia Basin 

pygmy rabbits. As with currently occupied habitats, we will continue to 

work cooperatively with, and provide technical assistance to, 

landowners and operators to help them avoid, minimize, or mitigate any 

potential future impacts to the Columbia Basin pygmy rabbit.

Critical Habitat

    Issue 3: We received a number of comments concerning critical 

habitat and how it relates to the emergency, proposed, and final rules 

for the Columbia Basin pygmy rabbit.

    Our Response: Neither our emergency, proposed, nor this final rule 

designates critical habitat for the Columbia Basin pygmy rabbit. We 

find that designation of critical habitat for the Columbia Basin pygmy 

rabbit is not determinable at this time because information sufficient 

to perform the required analyses of the impacts of the designation is 

lacking (see Critical Habitat, below). We will continue to protect the 

Columbia Basin pygmy rabbit and its habitat through section 7 

consultations on Federal actions that may affect this population 

segment, through the recovery process, through HCPs under section 10, 

and through enforcement of take prohibitions under section 9 of the 


National Environmental Policy Act (NEPA)

    Issue 4: Several comments suggested the need for NEPA analyses, or 

requested an explanation of why the NEPA process is not necessary, for 

this final rule.

    Our Response: We have determined that environmental assessments 

(EAs) and environmental impact statements (EISs) developed pursuant to 

NEPA do not need to be prepared in connection with regulations adopted 

pursuant to the listing process under section 4(a) of the Act. The 

Federal Council on Environmental Quality has determined, based on court 

decisions, that listing actions under the Act are exempt from NEPA 

review as a matter of law. We published a notice that further describes 

our reasons for this determination in the Federal Register on October 

25, 1983 (48 FR 49244).

Determination of Status of Columbia Basin and Other Pygmy Rabbit 


    Issue 5: We received a number of comments and questions concerning 

how new information about the presence of additional subpopulations of 

Columbia Basin pygmy rabbits may affect the status of the population, 

the listing process, or this final rule.

    Our Response: If significant new information becomes available 

regarding additional subpopulations of Columbia Basin pygmy rabbits, 

the new information could affect the priority of the management actions 

identified for the captive propagation program and/or the ongoing 

conservation actions being implemented for the remaining wild portion 

of the population. The information we currently have available 

indicates that it is unlikely that a sufficiently large, well 

distributed ``unknown'' subpopulation may still occur that would 

completely remove the need for protection of the species under the Act. 

No additional information on locations of other subpopulations of 

Columbia Basin pygmy rabbits was provided during the comment period.

    Issue 6: We received a number of comments and questions concerning 

how we determined the historic range of the pygmy rabbit, what the 

abundance and status of various pygmy rabbit populations are, how 

abundance estimates are determined, and the causes behind the recent 

declines in the Columbia Basin pygmy rabbit.

    Our Response: Information concerning the current, historic, and 

prehistoric distribution of the Columbia Basin pygmy rabbit population 

primarily comes from scientific literature, including peer-reviewed 

journal articles, doctoral dissertations, master's theses, and/or State 

natural resource agency reports and data. These sources are referenced 

within the body of the rule, as appropriate. As discussed above (see 

Distribution and Status), there is very little information currently 

available regarding the abundance of pygmy rabbits throughout the 

majority of their current range. Due to the ongoing efforts of the WDFW 

to monitor and study pygmy rabbits over the last several decades, there 

is considerably more information available regarding the current 

abundance and distribution of the Columbia Basin population.

    With regard to the past distribution and abundance of the Columbia 

Basin pygmy rabbit, we assume that this population was more broadly 

distributed and had a greater abundance of individuals within this 

region historically. This assumption is based on the available 

information addressing other pygmy rabbit populations, the population 

dynamics of other Leporid species, and the general concepts and theory 

of minimum viable populations. Given this available information, it is 

unlikely that the Columbia Basin pygmy rabbit would have persisted 

within this region for thousands of years with such a limited 

distribution and at such minimum abundance levels. Nevertheless, the 

available information only indicates the occurrence of several small 

subpopulations in portions of five counties in central Washington since 

the early 1900s. As such, the historic distribution and abundance of 

the Columbia Basin pygmy rabbit that we report in this final rule 

represent minimum estimates.

    Obtaining precise estimates of wildlife abundance levels is often 

very difficult. This is because: (1) The abundance of many wildlife 

populations naturally fluctuates between years, and even between 

seasons within years; (2) individuals are often difficult to observe; 

(3) individuals often move between observations or there is an unknown 

amount of mixing of individuals between observed areas; and (4) 

observation techniques can affect the behavior of the individuals being 

observed. Because of these limitations, managers often use a 

``surrogate'', or index, to estimate a probable range of values 

concerning wildlife abundance levels. With regard to pygmy rabbits, the 

occurrence of their burrows and estimates of the burrows' ages and/or

[[Page 10400]]

activity levels (e.g., active, fresh, old, very old) are typically used 

to monitor the status of a given population.

    We understand that there are limitations in the available 

information addressing the current and historic distribution and 

abundance of the Columbia Basin and other pygmy rabbit populations. 

However, the available information provides several important 

parameters with regard to our listing determination, including: (1) The 

distribution of the Columbia Basin pygmy rabbit has declined 

dramatically from historic levels; (2) five of six known subpopulations 

remaining in the mid-1990s have been extirpated; and (3) the abundance 

of active burrows and, by extension, individual pygmy rabbits within 

the last known occupied site, has declined dramatically over this same 

recent time period. The estimates of individual Columbia Basin pygmy 

rabbits known to remain in the wild, as presented in the proposed rule 

and this final rule, represent maximum estimates and are based on the 

best professional judgement of recognized experts.

    As discussed below (see Summary of Factors Affecting the DPS), 

several factors and their interactions are implicated in the historic 

and recent declines of the Columbia Basin pygmy rabbit, including 

habitat conversion and fragmentation, wildfire, predation, livestock 

grazing, and disease. However, addressing the extremely small size and 

limited distribution of this population is our primary concern for the 

immediate conservation and protection measures for the Columbia Basin 

pygmy rabbit. Measures to address the more general and/or long-term 

threat factors will be identified as our recovery program is further 

developed (see Captive Propagation and Recovery, below).

Livestock Grazing

    Issue 7: We received a large number of comments concerning our 

interpretation of the available information with regard to livestock 

grazing and the potential effects it has on the Columbia Basin pygmy 

rabbit. Some comments suggested that we were overly critical concerning 

the negative effects of livestock grazing and did not adequately 

address its potential benefits to the Columbia Basin pygmy rabbit. In 

contrast, other comments suggested that we down-played the negative 

effects of livestock grazing and implied that regulatory restrictions 

should be placed on grazing activities in all areas currently or 

potentially used by the Columbia Basin pygmy rabbit.

    Our Response: As with the available information addressing 

distribution and abundance (see above response), we understand that 

there are limitations in the available information concerning the 

effects of livestock grazing on the Columbia Basin pygmy rabbit. 

However, with regard to adverse effects of livestock grazing, the one 

study available found several important characteristics--(1) Male 

Columbia Basin pygmy rabbits tend to make longer movements and require 

larger home ranges during the breeding season in recently grazed areas 

as opposed to areas that have not been grazed for several decades (Gahr 

1993); (2) there tend to be fewer burrows available to, or constructed 

by, Columbia Basin pygmy rabbits in recently grazed areas (L. Shipley, 

pers. comm. 2001); (3) Columbia Basin pygmy rabbits occupying recently 

grazed sites tend to have a greater proportion of their summer through 

winter diets composed of sagebrush as opposed to grasses and forbs (L. 

Shipley, pers. comm. 2001); (4) the nutritional quality of the 

available grasses and shrubs tends to be less from fall through spring 

in recently grazed areas (L. Shipley, pers. comm. 2002); and (5) 

livestock can directly damage pygmy rabbit burrow systems through 

trampling (Rauscher 1997; N. Siegel, WSU, pers. comm. 2001; M. Hallet, 

pers. comm. 2002).

    Other, more general, information also suggests the adverse effects 

on the Columbia Basin pygmy rabbit associated with livestock management 

activities. These other potential impacts include sagebrush control 

efforts, effects on predator distribution and density through the use 

of artificial watering or supplemental nutrition and feeding sources 

for livestock, structural damage to dense stands of sagebrush by 

livestock, removal of current herbaceous growth or residual cover of 

native grasses and forbs by livestock for forage, and increases in the 

density or distribution of various invasive weed species.

    The available information described above suggests there is a 

potential for take of the Columbia Basin pygmy rabbit to occur, as 

defined by the Act, in association with some livestock grazing 

operations. These potential impacts may be in the form of direct take 

(e.g., injury or mortality due to trampling of occupied burrows or 

sagebrush eradication efforts), or in the form of indirect take (e.g., 

harm or harassment due to habitat modification or degradation that 

significantly impairs normal behavioral patterns associated with the 

Columbia Basin pygmy rabbit's breeding, feeding, or sheltering 

activities). Due to the extremely low number and restricted 

distribution of Columbia Basin pygmy rabbits, additional mortality 

resulting from livestock grazing practices currently represents a 

potentially significant threat to their continued existence.

    Pygmy rabbits have coexisted with various levels of livestock 

grazing activities throughout their historic range for many years. 

Currently, it is unclear if light or moderate levels of livestock 

grazing may be compatible with, or even beneficial to, long-term 

conservation efforts for otherwise secure populations of pygmy rabbits. 

The effects of livestock grazing that have been identified to 

potentially benefit the Columbia Basin pygmy rabbit include: (1) 

Increasing the vigor of grass species through mechanical disturbance by 

livestock; (2) increasing the abundance of sagebrush cover through 

altered competitive advantage by removal or reduction of associated 

shrub steppe vegetation; (3) increasing the biological diversity of 

wildlife and vegetation species; and (4) creating more open habitats 

that provide improved security through increased visual line-of-sight 

for pygmy rabbits.

    It is our intention, once the captive propagation program becomes 

better established and appropriate protection measures are in place to 

ensure the security of the remaining wild portion of the population, to 

reinitiate or support future studies to address the potential effects 

of livestock grazing (both positive and negative) on the Columbia Basin 

and/or other pygmy rabbit populations. These efforts should attempt to 

include the evaluation of pygmy rabbits in areas subject to various 

intensities and timing of livestock grazing, areas where livestock 

grazing has been discontinued for known periods of time, sites that 

have historically remained free of livestock grazing, and areas of 

varying soils and initial ecosystem conditions. These evaluations will 

help fill the current information gaps regarding the effects of 

livestock grazing on the Columbia Basin pygmy rabbit and provide a 

basis for analyzing grazing activities under sections 7 and 10(a) of 

the Act.

    The specific conditions under which livestock grazing activities 

will be addressed in habitats occupied by the Columbia Basin pygmy 

rabbit will be further defined as our recovery program is developed 

(see Captive Propagation and Recovery, below).

    Issue 8: We received several comments concerning the effects of 

current and historic grazing by native herbivores, such as white-tailed 

deer (Odocoileus virginianus), mule deer (O. hemionus), elk (Cervus 

elaphus), and American bison (Bison bison), on the Columbia Basin pygmy 

rabbit. In

[[Page 10401]]

addition, some comments expressed concern regarding why this form of 

grazing is treated differently than the effects of livestock grazing 

and what management actions we may undertake to address these grazing 


    Our Response: The available information suggests that the shrub 

steppe habitats of the Columbia Basin evolved in the absence of 

substantial grazing pressure from large native herbivores since the 

latest period of glaciation, roughly 12,000 years BP (Mack and Thompson 

1982; Daubenmire 1988; Lyman and Wolverton 2002). Deer and elk are also 

primarily browsing, as opposed to grazing, animals. In addition, the 

ecological effects of grazing by various livestock (e.g., cattle, 

horses, sheep) are not typically considered to be comparable to those 

of native herbivores (Lyman and Wolverton 2002). In relatively large, 

well distributed pygmy rabbit populations, we would not expect grazing 

by native herbivores to represent a significant threat to their long-

term security.

    Historically, central Washington supported extensive livestock 

grazing operations throughout the shrub steppe habitats potentially 

used by the Columbia Basin pygmy rabbit (Daubenmire 1988; WDFW 1995a). 

Excessive livestock grazing pressure can have significant impacts on 

the shrub steppe ecosystems found throughout the historic range of the 

Columbia Basin pygmy rabbit (Fleischner 1994), and these impacts may be 

exacerbated in the Columbia Basin (see above response). Contemporary 

grazing levels are much reduced from historic levels; however, large 

livestock operations continue within the shrub steppe habitats of the 

Columbia Basin to the present. From 1986 to 1993, an average of roughly 

280,000 cattle were being supported in the five central Washington 

counties that historically harbored the Columbia Basin pygmy rabbit 

(WDFW 1995b).

    The available information suggests that the historic and seasonal 

use patterns and concentrations of native herbivores and their 

associated grazing effects within the Columbia Basin are considerably 

different from those of livestock operations. In addition, the 

available information does not indicate that natural levels of grazing 

by native herbivores, or their grazing patterns as they may have been 

altered by contemporary human activities, currently represent a risk to 

the Columbia Basin pygmy rabbit.

Predation and Disease

    Issue 9: We received a number of questions and comments concerning 

our interpretation of the available information addressing predation 

and disease and the potential effects they have on the Columbia Basin 

pygmy rabbit. In addition, several commenters raised issues and 

questions concerning our potential future management actions to address 

these threat factors.

    Our Response: Information concerning the potential current and 

historic impacts from predation and disease on the Columbia Basin and 

other pygmy rabbit populations primarily comes from scientific 

literature, including peer-reviewed journal articles, doctoral 

dissertations, master's theses, and/or State natural resource agency 

reports and data. In addition, the past and current management efforts 

that the WDFW has undertaken to address these threat factors are 

presented in the preamble to the rule. The details of planned future 

Federal management actions to address these threat factors will be 

further defined as our recovery program is developed (see Captive 

Propagation and Recovery, below).

    The available information suggests that in relatively large, well 

distributed pygmy rabbit populations, predation and disease are not 

likely to represent a significant threat to their long-term security. 

However, due to the extremely small size and localized occurrence of 

the Columbia Basin pygmy rabbit, the available information suggests 

that human-altered predation and/or disease patterns, and even natural 

levels of predation and disease, may significantly impair conservation 

efforts for the remaining wild and captive portions of this population 


Captive Propagation and Recovery

    Issue 10: We received a number of comments regarding the captive 

propagation program established by the WDFW and our potential 

management activities to address recovery of the Columbia Basin pygmy 

rabbit. These comments addressed a wide variety of issues and 

questions, including the health and breeding success of captive pygmy 

rabbits, impacts to pygmy rabbit populations associated with research 

or conservation efforts, other potential differences between the 

various pygmy rabbit populations (e.g., physiological, behavioral, 

morphological), the survival characteristics of captive bred versus 

wild individuals, habitat enhancement or restoration standards for 

mitigation efforts, Federal recovery policy for down-listing or 

delisting the Columbia Basin pygmy rabbit, and reintroduction protocols 

and potential release sites for the recovery program.

    Our Response: The available information we have regarding the 

biology and ecology of the Columbia Basin pygmy rabbit, impacts to the 

populations, and mitigation efforts is referenced within the preamble 

to this final rule.

    The WDFW's captive propagation program affords an opportunity to 

maintain a sufficient number of Columbia Basin pygmy rabbits in 

captivity until appropriate recovery measures are developed and 

implemented to ensure the population's survival in the wild. 

Ultimately, the goal of the captive propagation effort is to release 

captive-bred Columbia Basin pygmy rabbits back into suitable habitats 

within their historic range so that viable subpopulations can become 

re-established. However, the number and size of the wild subpopulations 

necessary for recovery pursuant to the Act have not yet been 


    Listing the Columbia Basin pygmy rabbit as endangered will provide 

for the development of a recovery plan. Such a plan would bring 

together Federal, State, and local efforts for the conservation of the 

species to form a recovery planning team. During the Federal recovery 

planning process, a team develops a plan to establish a framework for 

agencies to coordinate recovery efforts and cooperate with each other 

in conservation efforts. A recovery plan will set recovery objectives 

and priorities, such as habitat enhancement and/or restoration efforts, 

reintroduction protocols, and potential release sites, assign 

responsibilities to achieve those goals and objectives, and estimate 

costs of various tasks necessary to achieve conservation and survival 

of this species. A recovery plan will also identify goals and 

objectives that need to be met in order to downlist or delist the 

species. The following comments may provide further clarification.

    Issue 11: Concern was expressed regarding possible mixing of 

Columbia Basin pygmy rabbits being held in captivity with those from 

the Idaho population being used for the husbandry studies.

    Our Response: There have been no instances of intermixing between 

the two source populations of captive pygmy rabbits. The WDFW, WSU, and 

Oregon Zoo implemented a number of appropriate measures to avoid the 

possibility of commingling of Columbia Basin and other pygmy rabbits 

being held in captivity. These, and additional measures, were also made 

conditions of the December 18, 2001, recovery permit we issued for the 

captive propagation program (see Previous Federal Action, above). These 

measures include

[[Page 10402]]

maintaining secure and appropriately marked cages, providing discrete 

holding areas or separation fencing between cages, and developing and 

adhering to strict transport and handling procedures to minimize any 

potential for direct contact between the captive pygmy rabbit 

populations. Furthermore, notification of any instances of commingling 

of Columbia Basin and other pygmy rabbits will be provided to the 

Service within 3 working days of the incident, and will include a 

description of the circumstances under which the commingling occurred 

and corrective measures to address that and any potential future 


    Issue 12: Concerns were expressed regarding the potential impacts 

to the Columbia Basin pygmy rabbit from various ongoing research and 

conservation activities, and our potential actions to address these 


    Our Response: We recognize that certain research and conservation 

activities have the potential to directly and indirectly affect the 

Columbia Basin pygmy rabbit. The available information addressing the 

circumstances under which these impacts may be occurring, or have the 

potential to occur in the future, are referenced in the preamble to the 

rule, as appropriate.

    Research and management activities for the Columbia Basin pygmy 

rabbit will be regulated under the section 10 permitting process. The 

WDFW has closely coordinated its management activities to conserve the 

Columbia Basin pygmy rabbit with us. In addition, in cooperation with 

the WDFW, WSU, and the Oregon Zoo, we have developed a number of 

appropriate measures to avoid or reduce the risk of take of the 

Columbia Basin pygmy rabbit. These measures were made conditions of the 

December 18, 2001, recovery permit and its revisions that we issued for 

the captive propagation program and ongoing management activities at 

the Sagebrush Flat site (see Previous Federal Action, above). We will 

continue to work cooperatively with interested parties on activities 

conducted for scientific purposes or to enhance the propagation or 

survival of the Columbia Basin pygmy rabbit under section 10 of the 


    Issue 13: Concern was expressed regarding our use and incorporation 

of information from other pygmy rabbit populations in the background 

biological discussions and other sections of the emergency and proposed 

listing rules. In addition, questions were raised regarding whether 

this information is appropriate or applicable to the Columbia Basin 

pygmy rabbit.

    Our Response: Wildlife investigations often use information 

concerning closely related populations, subspecies, species, and even 

genera when making biological inferences about a given population. It 

is important that any inferences made from these comparisons recognize 

the potential differences between the populations (or higher taxa), and 

that any conclusions are limited to what the available information 

supports. However, understanding the life history of a closely related 

population (or higher taxa) is often beneficial, and at times even 

essential, to a more complete understanding of the population of 

interest. While the Columbia Basin pygmy rabbit is distinct from other 

pygmy rabbit populations, we recognize that they share many 

similarities in their life history characteristics. Recognizing these 

similarities is critical to our understanding of the Columbia Basin 


    Service policy concerning the consideration of a DPS for listing 

under the Act requires us to evaluate the discreteness and significance 

of a given population in comparison to the remainder of its taxon. 

Considering all of the available information on a species helps 

determine if significant differences may exist between its discrete 


    Issue 14: Several commenters expressed concern regarding the area 

affected by the listing, and the potential extent of reintroduction 

efforts that may be undertaken to address recovery of the Columbia 

Basin pygmy rabbit.

    Our Response: This final rule lists as endangered the pygmy rabbit 

in the Columbia Basin of central Washington (Figure 2). Appropriate 

sites within this region that could potentially be used for 

reintroduction efforts will be identified as our recovery program is 

further developed. Pygmy rabbit populations in other States throughout 

the species' historic range are not included in this listing action, 

nor will any areas outside of the historic range of the Columbia Basin 

pygmy rabbit population be considered for any recovery actions.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 

34270), we sought independent expert review by seven specialists during 

the comment period on the proposal to list the Columbia Basin pygmy 

rabbit. The purpose of these reviews is to ensure that listing 

decisions are based on scientifically sound data, assumptions, and 

analyses. The seven independent reviewers would provide expertise on 

pygmy rabbit biology, population genetics, Columbia Basin shrub steppe 

ecology and rangeland management. Six of these reviewers submitted 

comments on the proposed listing, and one did not respond. Experts that 

provided comments include: Two pygmy rabbit researchers, one from 

Arizona State University and one from Idaho State University; a 

research wildlife biologist from the Biological Resources Division of 

the U.S. Geological Survey; a population geneticist from the University 

of Denver; a research biologist from the WDFW; and a senior scientist 

from NMFS. All of the experts concurred that the proposed listing 

action was justified and appropriate. We have incorporated their 

comments into this final determination. We address substantive comments 

raised by the peer reviewers concerning various aspects of the 

emergency and proposed rules below, and issues of a similar nature are 

grouped together, along with our response to each.

    Issue 1: The role of habitat loss and fragmentation in the long-

term decline of the Columbia Basin pygmy rabbit should be further 

emphasized in the final rule. In addition, measures to address habitat 

protection and restoration, including identifying specific habitat 

parameters and the control of exotic and/or invasive plant species, 

should be further addressed in the final rule.

    Our Response: We recognize that habitat loss and fragmentation have 

likely played a primary role in the long-term decline of the Columbia 

Basin pygmy rabbit. In addition, we recognize that habitat protection 

and restoration will play a central role in future conservation efforts 

for this population. We will review and further develop specific 

habitat parameters and criteria, in cooperation with interested 

parties, at such time as we undertake future Federal conservation or 

recovery initiatives for the Columbia Basin pygmy rabbit.

    Issue 2: The biophysical role of habitat (e.g., thermal cover 

provided by native bunch grasses), and the potential impacts to this 

role from livestock grazing, should be further emphasized in the final 


    Our Response: We recognize the potential for habitat to play an 

important biophysical role for the Columbia Basin pygmy rabbit, and 

that livestock grazing may affect these habitat parameters. However, 

there is very little additional information available regarding this 

potential relationship and, until it becomes available, clarification 

of this issue needs further investigation.

[[Page 10403]]

    Issue 3: An expert comment was made that our use of the terms 

``prehistoric'', ``historic'', and ``recent'' be further clarified in 

the final rule.

    Our Response: In general, use of the identified terms in the final 

rule is as follows: prehistoric refers to information relating to 

conditions greater than roughly 200 years BP (i.e., prior to extensive 

European settlement of the western United States), and recorded largely 

after the fact (e.g., paleontological records); historic refers to 

information relating from roughly 200 to 50 years BP, and recorded 

primarily in the written tradition and at the time of occurrence; and 

recent refers to recorded information from the previous several 

decades. We recognize that the use of these terms is not absolute and 

some overlap between them is inevitable. As possible, we have added 

clarity to the use of these terms in the final rule, including the use 

of ``past'' when referring to all of these time periods combined, and 

``current'' when referring to the contemporary time frame (i.e., 

roughly the previous decade).

    Issue 4: It was emphasized that plague is exotic to North American 

ecosystems and that native species are likely to be poorly adapted to 

this potential threat factor. In addition, epizootics (an outbreak of 

disease) in wild animals are often very difficult to detect, and 

disease can not easily be ruled out as a significant possible risk 

factor. Finally, the potential occurrence of plague in badgers from 

Idaho was identified, and it was suggested that disease may be 

implicated in other mammal declines in the Columbia Basin (e.g., jack 


    Our Response: We concur with these clarifications and continue to 

consider disease a significant potential threat to the Columbia Basin 

pygmy rabbit.

    Issue 5: It was emphasized that a successful captive propagation 

program should be considered extremely important for the conservation 

and management of the Columbia Basin pygmy rabbit's unique genetic 


    Our Response: We concur with this clarification. We will continue 

to support the development of an effective captive propagation program 

for the Columbia Basin pygmy rabbit in order to release the species 

into suitable habitats within their historic range so that viable 

subpopulations can become established and self-sustained in the wild.

    Issue 6: It was suggested that the reasoning behind identifying 

threat factors B, C, and D for the Columbia Basin pygmy rabbit (see 

below) was somewhat circular; that is, if the population was not 

endangered from other, long-term causal factors (A and E), these other 

factors (B, C, D) would not represent current threats to the 

population. In addition, it was presumed that protection for the 

Columbia Basin pygmy rabbit under the Act could have been considered 

sooner to lessen the potential influences and complications of any such 

``secondary'' threat factors.

    Our Response: We are required to fully consider all five threat 

factors identified by the Act, regardless of whether they may be 

proximate or ultimate causal factors in the status of a given taxon. In 

addition, with regard to potential conservation and recovery efforts, 

identifying and controlling these more immediate threat factors is 

often critical to the long term security of a taxon, and consideration 

of longer-term conservation measures needed to ultimately achieve 

recovery of the taxon is often of a less urgent nature.

    It is appropriate to propose a species for listing at the time when 

sufficient information is available. For the Columbia Basin pygmy 

rabbit, when we had sufficient information we took the appropriate 


    Issue 7: Concern was expressed regarding whether the emergency 

listing process was needed, whether it was as thorough as the Service's 

normal listing process, and whether there are significant differences 

between the two listing pathways.

    Our Response: Emergency listing is appropriate when there are 

significant and imminent risks to the well-being of a taxon. We 

determined that such risks existed for the Columbia Basin pygmy rabbit 

primarily due to the population's extremely small size, ongoing loss 

and significant decline of its identified subpopulations, genetic 

indicators suggesting the likelihood of inbreeding depression within 

the population, and the unproven nature of the proposed captive 

breeding and subsequent reintroduction efforts for the species.

    The principal differences between emergency and normal listing 

processes are that, under emergency listing, the Secretary may make the 

protective measures of the Act immediately available to the species, 

upon a finding of a significant risk posed to its well-being, but the 

listing is in force for only 240 days, and there are certain exemptions 

regarding the requirements of public notification and input. The 240-

day expiration of an emergency listing is the primary reason we attempt 

to concurrently, or shortly thereafter, publish a proposed rule to list 

the species, as was done for the Columbia Basin pygmy rabbit, and 

finalize the listing as soon as possible.

    Issue 8: The suggestion was made that the status of the pygmy 

rabbit as a monotypic genus could be a consideration regarding the 

potential significance of its discrete populations.

    Our Response: Currently, we do not consider the status of taxa 

above the species level in our DPS analyses, nor is it specifically 

identified in the joint Service/NMFS policy addressing the recognition 

of DPS. However, we do consider taxonomic delineations above the 

species level in our priority ranking system to address the status of 

proposed and candidate species for potential listing actions under the 


    Issue 9: It was emphasized that, during our DPS analyses, careful 

consideration should be given to the appropriateness of using the same 

database to address both the discreteness and significance of a 

population in comparison to the remainder of its taxon, especially with 

regard to the available genetic data.

    Our Response: We concur with this clarification and recognize that, 

in various instances, it may be appropriate to consider the same 

database to address both DPS criteria. As suggested by the genetic 

information for the Columbia Basin pygmy rabbit presented above, we 

recognize that it is important to note whether the available data can 

be used primarily to address the isolation (i.e., discreteness) of a 

taxon's populations, the potential differentiation of a taxon's 

discrete populations from one another (i.e., significance), or as the 

data may relate to both criteria. In addition to the genetic 

information, we recognize that other sources of data, including 

behavioral, physiological, morphological, genetic, and ecological, may 

also apply to a taxon's discreteness and significance simultaneously. 

We will continue to address these conservation issues with regard to 

the pygmy rabbit throughout the species historic range as any 

additional information may become available.

Additional Information and Evaluations

    Comments and additional data received during the comment periods, 

as well as further analysis on our part, raised several issues 

addressed in this final rule. We address these issues more specifically 


    Additional information became available as follows:

    (1) The common raven is a significant potential predator of the 

Columbia Basin pygmy rabbit, and we also discuss WDFW's past and 

ongoing management efforts to address this threat factor.

    (2) Vandalism has the potential to result in direct or indirect 

take of

[[Page 10404]]

Columbia Basin pygmy rabbits held in captivity, and site security as an 

important management consideration to address this potential threat. 

See Summary of Factors Affecting the DPS and Available Conservation 

Measures sections.

    (3) Washington State legislation (HB 1309) provides measures with 

regard to conservation of the Columbia Basin pygmy rabbit. See Summary 

of Factors Affecting the DPS section.

    (4) Regarding the status and results of ongoing conservation and 

research efforts for the Columbia Basin pygmy rabbit, there is updated 

information concerning the WDFW's captive propagation program and 

research addressing the effects of livestock grazing. See Current 

Management Actions, Distinct Population Segment Review, and Summary of 

Factors Affecting the DPS sections.

    (5) There is potential for a significant gap in the range of the 

pygmy rabbit should the Columbia Basin population segment become 

extirpated. This assessment helps further clarify the concept of 

significance as it is defined in the Act and our policy addressing the 

recognition of DPS. See Distinct Population Segment Review section.

    (6) Control of exotic plant species is a habitat protection and 

restoration measure for consideration during management actions and 

scientific investigations. See Available Conservation Measures section.

Summary of Factors Affecting the DPS

    After a thorough review and consideration of all available 

information, we have determined that the Columbia Basin pygmy rabbit 

warrants classification as an endangered DPS pursuant to the Act. We 

followed procedures found in section 4 of the Act and regulations 

promulgated to implement the listing provisions of the Act (50 CFR part 

424). We may determine a DPS to be endangered or threatened due to one 

or more of the five factors described in section 4(a)(1). These factors 

and their application to the Columbia Basin pygmy rabbit (Brachylagus 

idahoensis) follow.

    A. Present or threatened destruction, modification, or curtailment 

of habitat or range. During the first half of the 1900s, large portions 

of more mesic (moist) shrub steppe habitats on deeper soils within the 

Columbia Basin were converted for dryland crop production (Daubenmire 

1988; Franklin and Dyrness 1988; WDFW 1995a). During the mid-1900s, 

large-scale irrigation projects led to further conversion of more xeric 

(dry) shrub steppe habitats on deeper soils within the Columbia Basin 

for irrigated agriculture (WDFW 1995a; Franklin and Dyrness 1988; U.S. 

Department of Interior (USDI) 1998). In addition, urban and rural 

developments (e.g., housing, industrial facilities, transportation 

corridors) in central Washington permanently remove native shrub steppe 

habitats. In 1994, it was estimated that approximately 60 percent of 

the original shrub steppe habitat in Washington had been converted for 

human uses (Dobler 1994), and shrub steppe habitats within the Columbia 

Basin continue to be converted for a variety of human uses. The 

Columbia Basin pygmy rabbit can not occupy these converted sites. Due 

to the small home ranges and relatively restricted movements of pygmy 

rabbits, conversion of native habitats in the Columbia Basin also 

removes or severely limits their dispersal corridors between suitable 


    A number of other, often interacting, influences affect the 

remaining native shrub steppe habitat within the Columbia Basin, 

including altered fire frequencies, invasion by non-native species, 

recreational activities, and livestock grazing. Sagebrush is easily 

killed by fire and, when it occurs at increased frequencies, it can 

remove sagebrush from the vegetation assemblage (Daubenmire 1988). In 

the absence of a sufficient seed source, sagebrush cannot readily 

reinvade sites where it has been removed, and it may be many years 

before it can become reestablished (WDFW 1995a). Due to a variety of 

factors (see below), the fire frequency has increased over portions of 

the remaining shrub steppe habitat within the Columbia Basin. Because 

of their close association with tall, dense stands of sagebrush, pygmy 

rabbits are precluded from occupying frequently burned areas.

    Various non-native, invasive plant species, such as cheatgrass 

(Bromus tectorum) and knapweed (Centauria spp.), have become well 

established throughout the Columbia Basin (Daubenmire 1988; Franklin 

and Dyrness 1988). Areas with dense cover of cheatgrass are apparently 

avoided by pygmy rabbits in Oregon (Weiss and Verts 1984), and these 

newly established plant communities often provide fine fuels that can 

carry a fire. Combined with widespread unimproved road access and 

informal recreational activities that provide multiple sources of 

ignition, the establishment of non-native species increases the risk of 

fire and further reduces the security of areas that could potentially 

support the Columbia Basin pygmy rabbit (WDFW 1995a).

    Fire was implicated in the loss of the only pygmy rabbit 

subpopulation ever recorded in Benton County, Washington, in 1979 (WDFW 

1995a), and was directly associated with the loss of one of the few 

remaining subpopulations in Douglas County in 1999 (WDFW 2001b). The 

WDFW has taken measures to reduce the risk of fire at the Sagebrush 

Flat site (e.g., constructing firebreaks). However, unimproved road 

access and informal recreational activities provide a continuing source 

for ignition of uncontrolled fires in the area (WDFW 1995a). Due to the 

extremely low number of Columbia Basin pygmy rabbits in the wild, their 

restriction to one known site, and their reliance on relatively tall, 

dense stands of sagebrush, natural and human-caused fire represents a 

significant threat to this portion of the population.

    Land managed for livestock grazing is often cleared of sagebrush to 

increase the production of grasses and forbs as forage for cattle (WDFW 

1995a; Rauscher 1997), although this management practice in the 

Columbia Basin has declined from past levels (L. Hardesty, WSU, pers. 

comm. 2002). Clearing areas of sagebrush cover removes habitat patches 

potentially used by the Columbia Basin pygmy rabbit. In addition, it 

can reduce the value of more marginal stands of sagebrush that may act 

as dispersal corridors for pygmy rabbits, further fragmenting the 

remaining suitable habitats. Much of the remaining shrub steppe habitat 

in the Columbia Basin is managed for livestock grazing (WDFW 1995a; N. 

Hedges, pers. comm. 2001).

    Excessive livestock grazing removes current herbaceous growth and 

residual cover of native grasses and forbs and can increase the density 

of various non-native, invasive species and--over several years--young 

sagebrush stands (Daubenmire 1988; WDFW 1995a). In some instances, this 

disturbance may eventually result in the growth of tall, dense stands 

of sagebrush (Daubenmire 1988), potentially improving the shrub forage 

and cover conditions for pygmy rabbits. However, livestock grazing at 

these levels potentially reduces the forage base and cover 

characteristics of grasses and forbs for Columbia Basin pygmy rabbits 

(Green and Flinders 1980b; Rauscher 1997). Excessive livestock grazing 

may also cause structural damage to dense stands of older sagebrush. 

This acts to open the canopies of these sites and potentially makes 

them less suitable as cover for Columbia Basin pygmy rabbits (Gahr 

1993; Rauscher 1997). Currently, it is unclear if light or moderate 

levels of

[[Page 10405]]

livestock grazing may be compatible with pygmy rabbit conservation 

efforts over the long-term.

    There are several past and ongoing studies that have investigated 

the effects of different livestock grazing strategies on Columbia Basin 

pygmy rabbits and their habitat (Gahr 1993; WDFW 1995a; Sayler et al. 

2001; L. Shipley, pers. comm. 2001). Gahr (1993) found that male pygmy 

rabbits at the Sagebrush Flat site made longer movements during the 

breeding season, resulting in larger home ranges, in recently grazed 

areas as opposed to areas that had not been grazed for nearly 40 years. 

In addition, relative to unit size, there are more pygmy rabbit burrows 

in the ungrazed areas of Sagebrush Flat than the recently grazed areas 

(L. Shipley, pers. comm. 2001). Further evaluation of the distribution 

and availability of appropriate soils across the Sagebrush Flat site 

will help clarify these results. Nevertheless, they suggest that 

Columbia Basin pygmy rabbits may be more susceptible to predation in 

areas used for livestock grazing due to longer movements away from 

cover and fewer burrows available for escape.

    Results of an ongoing study also indicate that Columbia Basin pygmy 

rabbits occupying grazed sites tend to have a greater proportion of 

their summer through winter diets composed of sagebrush as opposed to 

grasses and forbs (L. Shipley, pers. comm. 2001). In addition, the 

nutritional quality (e.g., less protein and greater fiber content) of 

the available grasses and shrubs in recently grazed sites tends to be 

less from fall through spring (L. Shipley, pers. comm. 2002). These 

results provide support for the contention that livestock may compete 

directly with pygmy rabbits for available forage during these periods 

(Green and Flinders 1980b; Rauscher 1997). There is also evidence that 

cattle can directly damage pygmy rabbit burrow systems through 

trampling (Rauscher 1997; N. Siegel, WSU, pers. comm. 2001; M. Hallet, 

pers. comm. 2002). These impacts may be especially critical during the 

Columbia Basin pygmy rabbits' reproductive period.

    Populations of pygmy rabbits have coexisted with various levels of 

livestock grazing activities throughout their historic range for many 

years (WDFW 1995a). However, due to the extremely low number and 

restricted distribution of Columbia Basin pygmy rabbits, any additional 

mortality or population stress associated with livestock grazing 

practices represents a significant threat to the security of the wild 

portion of this population segment.

    Due to the combined influences described above, Washington's native 

shrub steppe habitats, including those considered essential to the 

long-term security of the Columbia Basin pygmy rabbit, are considered 

among the least protected areas in the State (Cassidy 1997).

    B. Over-utilization for commercial, recreational, scientific, or 

educational purposes. Pygmy rabbits are often difficult to distinguish 

from species of cottontail rabbits (Sylvilagus spp.) (Garber 1993; WDFW 

1995a). Because of this, accidental shooting of Columbia Basin pygmy 

rabbits may occur in association with hunting of other small game 

species in Washington (WDFW 1979). Due to their extremely low numbers, 

restricted distribution, and preference for dense habitats, combined 

with relatively few small game hunters at the Sagebrush Flat site, the 

risk from accidental shooting of Columbia Basin pygmy rabbits is 

currently considered relatively low (WDFW 1995a; D. Hays, pers. comm. 

2001). However, in such reduced populations, accidental shooting could 

become a significant source of mortality if it is not carefully 


    Investigations that require trapping, handling, and captivity of 

pygmy rabbits can result in mortality from several causes, including 

exposure (due to excessively high or low temperatures); direct injury 

from entanglement in traps, trap predation, and intra-specific 

fighting; and capture stress (Bailey 1936; Severaid 1950; Wilde 1978; 

Gahr 1993; Rauscher 1997). Capture-related mortality rates (including 

recaptures) reported for pygmy rabbits are roughly 3 percent (Gahr 

1993), 5 percent (Wilde 1978), and 13 percent (Rauscher 1997). The 

mortality rate for one study approached 20 percent when the total 

number of captured animals was considered (11 deaths of 58 

individuals), and all of the mortalities in this study occurred in just 

one portion of the study area (Rauscher 1997). Trapping methods, daily 

and seasonal timing, study location, holding facilities and site 

security, and husbandry techniques may all affect the level of capture-

related mortality incurred. In addition, vandalism of captive rearing 

facilities remains a threat following capture (L. Hardesty, pers. comm. 


    Currently, the WDFW is leading efforts to establish a captive 

breeding population of Columbia Basin pygmy rabbits (see Current 

Management Actions, above). To date, three capture-related deaths have 

occurred in this program. These deaths represent roughly a 14 percent 

mortality rate for the captured animals (3 of 21 individuals). While 

the captive propagation program is necessary to help ensure the long-

term survival of the Columbia Basin pygmy rabbit, and we support these 

efforts, the potential for capture-related mortality to significantly 

affect the success of this program remains.

    Some pygmy rabbit burrows are relatively shallow and may collapse 

when walked on by humans (Wilde 1978). Investigations of pygmy rabbits 

often entail the destruction of individual burrows, while measuring of 

the vegetation community and other site characteristics immediately 

surrounding burrow systems, and/or disturbance to the general area 

occupied by the pygmy rabbits (Janson 1946; Bradfield 1974; Green 1978; 

Wilde 1978; Gahr 1993; Gabler 1997; Rauscher 1997). Furthermore, 

various ongoing management and maintenance activities of the WDFW at 

the Sagebrush Flat site (e.g., establishment of firebreaks, species and 

habitat surveys, fencing removal or construction) have the potential to 

directly or indirectly affect the Columbia Basin pygmy rabbit.

    It is unlikely that any of the above activities alone has played a 

significant role in the long-term population decline and range 

reduction of the Columbia Basin pygmy rabbit. However, due to the 

current vulnerability of both the wild and captive portions of this 

population segment, any additional source of mortality may now play a 

significant role and could impair efforts to conserve the Columbia 

Basin pygmy rabbit.

    C. Disease or predation. Pygmy rabbits often harbor a high parasite 

load (Gahr 1993; WDFW 1995a). Some of the parasites of pygmy rabbits, 

including ticks, fleas, and lice, can be vectors of disease. Episodes 

of plague and tularemia from these vectors have been reported in 

populations of a number of other Leporid species and are often 

fulminant (rapidly spreading) and fatal (Quan 1993). Severe disease 

epidemics have not been reported in pygmy rabbits, and parasites have 

not been viewed as a significant threat to the species (Green 1979; 

Gahr 1993). However, evidence of plague was reported in a coyote taken 

from the site of one of the recently extirpated subpopulations of 

Columbia Basin pygmy rabbits (WDFW 2001a). The potential occurrence of 

plague in this subpopulation is being investigated using blood samples 

obtained prior to its extirpation (D. Hays, pers. comm. 2001). 

Additional studies have been proposed to investigate the occurrence of 

plague and other diseases, and their possible control, in wild and 


[[Page 10406]]

populations of pygmy rabbits (C. Brand, National Wildlife Health 

Center, pers. comm. 2001). Because so few Columbia Basin pygmy rabbits 

remain, the potential for disease outbreak represents a significant 

threat to both the wild and captive portions of this population 


    Predation is thought to be a major cause of mortality among pygmy 

rabbits (Green 1979; Wilde 1978). However, pygmy rabbits have adapted 

to the presence of a wide variety of avian and terrestrial predators 

that occur throughout their historic distribution (Janson 1946; 

Gashwiler et al. 1960; Green 1978; Wilde 1978; WDFW 1995a). In 

relatively large, well distributed pygmy rabbit populations, predation 

is not likely to represent a significant threat to their long-term 

security. In contrast, due to the extremely small size and localized 

occurrence of the Columbia Basin pygmy rabbit population, altered 

predation patterns, or even natural levels of predation, currently 

represent a significant threat to both the wild and captive portions of 

this population segment and could impair ongoing conservation efforts.

    Due to confirmed evidence of coyote predation on the Columbia Basin 

pygmy rabbit, the WDFW implemented a predator control program during 

the fall-winter periods of 1998-1999 and 1999-2000 (WDFW 2000a). 

Numerous coyotes and several long-tailed weasels were removed, by 

shooting, traps, or snares, over roughly 52 square kilometers (20 

square miles) around and including the Sagebrush Flat site. The level 

of effort to control terrestrial predators varied among years and 

areas, and the efficacy of this program to protect the Columbia Basin 

pygmy rabbit is unknown. There are also a variety of avian predators 

that may occur at the Sagebrush Flat site. In an effort to help control 

the occurrence of common ravens and other predatory birds, the WDFW 

recently removed two obsolete windmills from the area that could have 

potentially been used as perching or nesting sites (M. Hallet, pers. 

comm. 2002).

    Because of the relatively restricted distribution of the Columbia 

Basin pygmy rabbit, terrestrial and avian predators may also have a 

reduced search area and/or increased success rate at the Sagebrush Flat 

site. To further address the threat of predation on the Columbia Basin 

pygmy rabbit, additional measures are being considered by the WDFW for 

this area, such as controlling artificial food sources (e.g., spilled 

grain, trash, carnivore baits), the removal of unnecessary fencing 

potentially used as perch sites for avian species, and providing 

appropriate predator exclusion fencing (M. Hallet, pers. comm. 2002; D. 

Hays, pers. comm. 2002).

    Several measures (e.g., double fencing, monitoring) have been taken 

to reduce the risk of predation on the captive portion of the Columbia 

Basin pygmy rabbit population (R. Sayler, WSU, pers. comm. 2001; L. 

Shipley, pers. comm. 2001). In addition, captive animals are currently 

being held at multiple facilities, which reduces the risk of 

catastrophic loss at a single facility (D. Hays, pers. comm. 2002). 

However, while the risk has been greatly reduced, the potential for 

certain predators to access cages at the captive rearing facilities 


    Due to the extremely small size of the Columbia Basin pygmy rabbit 

population, even low levels of predation represent a significant risk 

to the immediate security of both the wild and captive portions of this 

population segment.

    D. Inadequacy of existing regulatory mechanisms. Washington State 

classification of the Columbia Basin pygmy rabbit as endangered makes 

it illegal to attempt to kill, injure, capture, harass, possess, or 

control individuals of the species (WDFW 1995a). However, illegal or 

accidental shooting of Columbia Basin pygmy rabbits may occur in 

association with hunting seasons for other small game species (see 

factor C above). In addition, State designation does not provide 

regulatory protection of the habitats considered essential to the long-

term security of the Columbia Basin pygmy rabbit.

    Pursuant to Washington State legislation passed in 1993 (HB 1309), 

the Washington State Conservation Commission (WSCC) oversaw the 

development and provided approval of ecosystem standards for State-

owned agricultural and grazing lands (WSCC 1995). HB 1309 called for 

implementation of the ecosystem standards to maintain and restore fish 

and wildlife habitat within the State by improving overall ecosystem 

health. The standards developed under HB 1309 are mandated for lands 

under the jurisdiction of the WDFW and Washington Department of Natural 

Resources (WDNR). Application of the standards on lands managed by the 

WDNR must be consistent with the agency's fiduciary obligations.

    Currently, we are assisting private landowners with development of 

a county-wide HCP to protect important plant and animal species on 

agricultural lands in Douglas County. However, there are no regulatory 

protections for unlisted species during development of HCPs. 

Revegetation standards under the CRP promote the improvement of 

habitats potentially used by the Columbia Basin pygmy rabbit, and the 

CRP restricts livestock grazing on contract lands except under severe 

drought conditions (M. Ruud, Farm Service Agency, pers. comm. 2001).

    E. Other natural or human-caused factors affecting the species' 

continued existence. The immediate concerns for the Columbia Basin 

pygmy rabbit are associated with the population's extremely small size, 

history of fragmentation and extirpation, and the recent, dramatic 

decline in its distribution and abundance. Small populations are 

susceptible to random environmental events (e.g., severe storms, 

prolonged drought, extreme cold spells, volcanic fallout), abrupt 

changes in cover and food resources, altered predator or parasite 

populations, disease outbreaks, and fire. Small populations are also 

more susceptible to demographic and genetic problems (Shaffer 1981). 

These threat factors, which may act in concert, include natural 

variation in survival and reproductive success of individuals, chance 

disequilibrium of sex ratios, changes in gene frequencies due to 

genetic drift, and lack of genetic diversity caused by inbreeding.

    Genetic indices indicate that the Columbia Basin pygmy rabbit had 

less genetic diversity historically than the remainder of the taxon. In 

addition, this population segment has undergone further loss of genetic 

diversity since roughly the mid-1900s. Severe loss of genetic diversity 

may make the Columbia Basin pygmy rabbit more susceptible to extinction 

due to inbreeding depression or, assuming inappropriate introduction of 

other pygmy rabbit genes, swamping of their unique genetic profile. 

Reduced genetic diversity, and the relatively few family lineages 

remaining in the Columbia Basin pygmy rabbit population, may also 

complicate captive breeding strategies conducted to reestablish a 

minimum effective population size. Ultimately, an appropriate effective 

population size will help ensure the maintenance and enhancement of the 

genetic heterogeneity that is still present within this population 

segment (K. Warheit, pers. comm. 2001, 2002).

    In relatively large, well distributed pygmy rabbit populations, the 

above threats are not likely to represent a significant risk to their 

long-term security. However, due to the extremely small size and 

localized occurrence of both the wild and captive portions of the 

Columbia Basin pygmy rabbit

[[Page 10407]]

population, these threats represent a significant risk to the long-term 

security of this DPS.


    Due to the combined influence of the above threats, extirpation of 

the Columbia Basin pygmy rabbit from the wild may occur at any time 

(WDFW 2001b). In addition, the risks to the captive portion of the 

population, and the potential for extinction of the Columbia Basin 

pygmy rabbit, remain high. We have carefully assessed the best 

scientific and commercial information available regarding the past, 

present, and potential future threats faced by the Columbia Basin pygmy 

rabbit. Based on our evaluation of the five threat factors discussed 

above, we have determined that the Columbia Basin pygmy rabbit is in 

danger of extinction. As such, we are listing the Columbia Basin pygmy 

rabbit as endangered.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 

specific area within the geographical area occupied by a species, at 

the time it is listed in accordance with the Act, on which are found 

those physical or biological features (I) essential to the conservation 

of the species, and (II) that may require special management 

considerations or protection; and (ii) specific areas outside the 

geographical area occupied by the species at the time it is listed, in 

accordance with the provisions of section 4 of the Act, upon a 

determination by the Secretary that such areas are essential for the 

conservation of the species. ``Conservation'' means the use of all 

methods and procedures needed to bring the species to the point at 

which listing under the Act is no longer necessary.

    Section 4(a)(3) of the Act, as amended, and its implementing 

regulations (50 CFR 424.12) require that, to the maximum extent prudent 

and determinable, we designate critical habitat at the time the species 

is determined to be endangered or threatened. Our implementing 

regulations (50 CFR 424.12(a)) state that critical habitat is not 

determinable if information sufficient to perform the required analyses 

of impacts of the designation is lacking, or if the biological needs of 

the species are not sufficiently well known to permit identification of 

an area as critical habitat. Section 4(b)(2) of the Act requires us to 

consider economic and other relevant impacts of designating a 

particular area as critical habitat on the basis of the best scientific 

data available. We may exclude any area from critical habitat if we 

determine that the benefits of such exclusion outweigh the conservation 

benefits, unless to do so would result in the extinction of the 


    We find that designation of critical habitat for the Columbia Basin 

pygmy rabbit is not determinable at this time because information 

sufficient to perform the required analyses of the impacts of the 

designation is lacking. We specifically solicited information on 

potential critical habitat, biological information, and information 

that would aid our prudency analysis in our proposed rule. We received 

no comments regarding specific physical or biological features 

essential to the Columbia Basin pygmy rabbit which provided information 

that added to our ability to determine critical habitat. In addition, 

the extent of habitat essential to the conservation of the species has 

not been identified. When a ``not determinable'' finding is made, we 

must, within 2 years of the publication date of the original proposed 

rule, designate critical habitat, unless the designation is found to be 

not prudent.

    We will continue to protect the Columbia Basin pygmy rabbit and its 

habitat through section 7 consultations to determine whether Federal 

actions may affect this population segment, through the recovery 

process, through HCPs and through enforcement of the Act's ``take'' 

prohibitions (see 16 U.S.C. 1538; 50 CFR 17.21).

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 

threatened under the Act include recognition, requirements for Federal 

protection, prohibitions against certain activities, and development of 

recovery plans. Recognition through listing results in public awareness 

and encourages conservation actions by Federal, State, and Tribal 

agencies, non-governmental conservation groups, and private 

individuals. The Act provides for possible land acquisition and 

cooperation with the States, and requires that recovery actions be 

carried out for listed species. The protection required of Federal 

agencies, and the prohibitions against certain activities involving 

listed species are discussed, in part, below.

    Section 7(a) of the Act, as amended, requires Federal agencies to 

evaluate their actions with respect to any species that is proposed or 

listed as endangered or threatened, and with respect to its critical 

habitat, if any is being designated. Regulations implementing this 

interagency cooperation provision of the Act are codified at 50 CFR 

part 402. Section 7(a)(4) requires Federal agencies to confer with us 

on any action that is likely to jeopardize the continued existence of a 

species proposed for listing, or result in destruction or adverse 

modification of proposed critical habitat. If a species is listed 

subsequently, section 7(a)(2) requires Federal agencies to ensure that 

activities they authorize, fund, or carry out are not likely to 

jeopardize the continued existence of the species or destroy or 

adversely modify its critical habitat, if any has been designated. If a 

Federal action may affect a listed species or its critical habitat, the 

responsible Federal agency must enter into formal consultation with us.

    Federal agencies, whose actions may require consultation for the 

Columbia Basin pygmy rabbit include, but are not limited to, those 

within the jurisdictions of the Service, BLM, Bureau of Reclamation, 

Natural Resources Conservation Service, and Farm Service Agency. In 

addition, activities that are authorized, funded, or administered by 

Federal agencies on non-Federal lands will be subject to section 7 


    We believe that protection and recovery of the Columbia Basin pygmy 

rabbit will require reduction of the threats from uncontrolled fire, 

altered predation patterns, excessive livestock grazing, disease 

outbreaks, mortality associated with the captive propagation and 

release programs, and loss of genetic viability. These threats should 

be considered for management actions in habitats currently and 

potentially occupied by the Columbia Basin pygmy rabbit, and those 

deemed important for dispersal between their appropriate use areas. 

Monitoring should also be undertaken for any management actions or 

scientific investigations designed to address these threats or their 

potential impacts.

    Listing the Columbia Basin pygmy rabbit as endangered provides for 

the development and implementation of a recovery plan for the 

population. This plan will bring together Federal, State, tribal, and 

local efforts for conservation of the species, and will establish a 

framework for interested parties to coordinate recovery efforts. The 

plan will set recovery priorities, assign responsibilities, and 

estimate the costs of the various tasks necessary to achieve 

conservation and survival of the species. Additionally, pursuant to 

section 6 of the Act, we will be able to grant funds to the State of 

Washington for management actions promoting the protection and recovery 

of this species.

    Considerations for management actions and scientific investigations 


[[Page 10408]]

address the above threats to the Columbia Basin pygmy rabbit include, 

but are not limited to:

    (1) Fire--implementation of agreements between fire-fighting 

districts and/or agency departments to provide adequate coverage, 

construction of fire breaks, availability of fire-fighting equipment, 

fire-fighting techniques, weed control, use of prescribed fire, and 

removal or restriction of unimproved road access and informal 

recreational activities;

    (2) Livestock Grazing--season(s) of use, stocking rate(s) and 

type(s), location of supplemental water and salt/minerals, loading and 

transport facilities, exclusion fencing, and removal;

    (3) Habitat Protection and Restoration--control of exotic and/or 

invasive plant species, planting types and techniques, soils and 

hydrologic analyses, land acquisition and connectivity, and control of 

unauthorized access.

    (4) Predation--identification of primary predators and predation 

patterns, development of protocols for fence removal and/or new fence 

construction, and predator deterrents and/or lethal control of 

predators to protect the wild and captive portions of the population;

    (5) Disease--identification and control of potential disease and 

disease vectors in wild and captive portions of the population;

    (6) Capture, husbandry, and reintroduction--development of 

protocols for survey, capture, handling, and husbandry techniques; 

maintenance and security of multiple holding facilities for captive 

stock; inventory and evaluation of appropriate release sites; and 

development of release and site maintenance protocols; and

    (7) Genetics--identification of additional genetic markers, 

implementation of appropriate breeding scenarios, and establishment of 

a minimum effective population for captive breeding and reintroduction 


    The Act and its implementing regulations set forth a series of 

general prohibitions and exceptions that apply to all endangered 

wildlife. The prohibitions of section 9 of the Act, codified at 50 CFR 

17.21, in part, make it illegal for any person subject to the 

jurisdiction of the United States to take (including harass, harm, 

pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt 

any such conduct), import or export, transport in interstate or foreign 

commerce in the course of commercial activity, or sell or offer for 

sale in interstate or foreign commerce any listed species. It is also 

illegal to possess, sell, deliver, carry, transport, or ship any such 

wildlife that has been taken illegally. Certain exceptions apply to our 

agents and State conservation agencies.

    Permits may be issued to carry out otherwise prohibited activities 

involving listed species under certain circumstances. Such permits are 

available for scientific purposes, to enhance the propagation or 

survival of the species, or for incidental take in connection with 

otherwise lawful activities.

    It is our policy, published in the Federal Register on July 1, 1994 

(59 FR 34272), to identify, to the maximum extent practical, those 

activities that would or would not constitute a violation of section 9 

of the Act. The intent of this policy is to increase public awareness 

of the effect of the listing on proposed and ongoing activities within 

the species' range. For the Columbia Basin pygmy rabbit, based upon the 

best available information, we believe the following actions are 

unlikely to result in a violation of section 9, provided these 

activities are carried out in accordance with existing regulations and 

permit requirements:

    (1) Possession, delivery, or movement, including interstate 

transport and import into or export from the United States of dead 

specimens of Columbia Basin pygmy rabbits that were collected prior to 

the date of publication of the emergency listing rule in the Federal 


    (2) Any action authorized, funded, or carried out by a Federal 

agency that may affect the Columbia Basin pygmy rabbit (e.g., land 

exchanges, land clearing, prescribed burning, livestock grazing, pest 

control, utility line or pipeline construction, mineral extraction or 

processing, housing developments, off-road vehicle use, recreational 

trail or campground development, road construction, shooting, 

poisoning, habitat conversion, road construction, water development and 

impoundment, unauthorized application of herbicides or pesticides in 

violation of label restrictions) when the action is conducted in 

accordance with an incidental take statement issued under section 7 of 

the Act;

    (3) Any action carried out for scientific research or to enhance 

the propagation or survival of the Columbia Basin pygmy rabbit that is 

conducted in accordance with the conditions of a section 10(a)(1)(A) 

permit under the Act; and

    (4) Any incidental take of the Columbia Basin pygmy rabbit 

resulting from an otherwise lawful activity conducted in accordance 

with the conditions of an incidental take permit issued under section 

10(a)(1)(B) of the Act.

    Activities that we believe could potentially result in a violation 

of section 9 include, but are not limited to:

    (1) Unauthorized possession, trapping, handling, collecting, or 

release of pygmy rabbits within the historic range of the Columbia 

Basin pygmy rabbit. Research efforts involving these activities will 

require a permit under section 10(a)(1)(A) of the Act;

    (2) Other activities that actually kill or injure a Columbia Basin 

pygmy rabbit by significantly impairing essential behavioral patterns 

(such as breeding, feeding or sheltering) through significant habitat 

modification or degradation (e.g., via land clearing, prescribed 

burning, habitat conversions, over-grazing or trampling by livestock, 

pest control, minerals extraction or processing, housing developments, 

off-road vehicle use, recreational trail or campground development, 

shooting, intentional poisoning, road construction, water development 

and impoundment, unauthorized application of herbicides or pesticides 

in violation of label restrictions). Otherwise lawful activities that 

incidentally take a Columbia Basin pygmy rabbit will require a permit 

under section 10(a)(1)(B) of the Act.

    Questions regarding whether specific activities risk violating 

section 9 should be directed to our Upper Columbia Fish and Wildlife 

Office (see ADDRESSES section). Requests for copies of the regulations 

on listed wildlife, including general inquiries regarding prohibitions 

and issuance of permits under the Act, may be addressed to the U.S. 

Fish and Wildlife Service, Ecological Services, Endangered Species 

Permits, 911 NE. 11th Avenue, Portland, Oregon 97232-4181 (telephone 

503/231-2063; facsimile 503/231-6243).

Immediate Effective Date

    The emergency listing that protected the Columbia Basin pygmy 

rabbit for 240 days expired on July 29, 2002. The threats to the 

species remain imminent and severe. Because of the extremely small size 

of the only remaining wild population, and the expiration of its 

interim protection, we find that good cause exists for this rule to 

take effect immediately upon publication in accordance with 5 U.S.C. 


National Environmental Policy Act

    We have determined that environmental assessments and environmental 

impact statements, as defined in the National Environmental

[[Page 10409]]

Policy Act of 1969, need not be prepared in connection with regulations 

adopted pursuant to section 4(a) of the Endangered Species Act of 1973, 

as amended. We published a notice outlining our reasons for this 

determination in the Federal Register on October 25, 1983 (48 FR 


Paperwork Reduction Act

    This rule does not contain any new collections of information that 

require approval by Office of Management and Budget (OMB) under the 

Paperwork Reduction Act (44 U.S.C. 3501 et seq.). This rule will not 

impose record keeping or reporting requirements on State or local 

governments, individuals, businesses, or organizations. An agency may 

not conduct or sponsor, and a person is not required to respond to, a 

collection of information unless it displays a currently valid OMB 

control number. The existing OMB control number is 1018-0094 and 

expires July 31, 2004.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order on 

regulations that significantly affect energy supply, distribution, and 

use. Executive Order 13211 requires Federal agencies to prepare 

Statements of Energy Effects when undertaking certain actions. This 

final rule is not expected to significantly affect energy supplies, 

distribution, or use. Therefore, this action is not a significant 

energy action and no Statement of Energy Effects is required.

References Cited

    A complete list of references cited herein is available upon 

request from the Upper Columbia Fish and Wildlife Office (see ADDRESSES 



    The primary author of this final rule is Christopher Warren of the 

Upper Columbia Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 

recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 

of the Code of Federal Regulations, as set forth below:


    1. The authority citation for part 17 will continue to read as 


    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. In Sec.  17.11(h), add the following to the List of Endangered 

and Threatened Wildlife in alphabetical order under MAMMALS:

Sec.  17.11  Endangered and threatened wildlife.

* * * * *

    (h) * * *


                        Species                                                    Vertebrate

--------------------------------------------------------                        population where                                  Critical     Special

                                                            Historic range       endangered or         Status      When listed    habitat       rules

           Common name                Scientific name                              threatened



                                                                      * * * * * * *

Rabbit, Columbia Basin pygmy.....  Brachylagus           U.S.A. (western      U.S.A. (WA--         E               ...........           NA           NA

                                    idahoensis.           conterminous U.S.).  Douglas, Grant,

                                                                               Lincoln, Adams,

                                                                               Benton Counties).

                                                                      * * * * * * *


    Dated: February 20, 2003.

Steve Williams,

Director, Fish and Wildlife Service.

[FR Doc. 03-5076 Filed 3-4-03; 8:45 am]